exv10w1



 





Exhibit 10.1




CREDIT AGREEMENT




by and among




V.F. CORPORATION,

as Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and a Lender,




CITIBANK, N.A.,

as Syndication Agent and as a Lender,




WACHOVIA BANK, NATIONAL ASSOCIATION

and

JPMORGAN CHASE BANK, N.A.

as Co-Documentation Agents and as Lenders,




BANC OF AMERICA SECURITIES LLC

and

CITIGROUP GLOBAL MARKETS INC.,

as Lead Arrangers, and Book Managers and Joint Bookrunners,




WACHOVIA CAPITAL MARKETS, LLC

as Joint Bookrunner




and




THE LENDERS PARTY HERETO FROM TIME TO TIME




as of October 15, 2007




 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	 

	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	DEFINITIONS AND TERMS	 	 	 	 
	 
	 	 	 	 	 	 
	1.1

	 	Definitions
	 	 	2	 
	1.2

	 	Rules of Interpretation
	 	 	18	 
	1.3

	 	Change of Currency
	 	 	20	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	THE CREDIT FACILITIES	 	 	 	 
	 
	 	 	 	 	 	 
	2.1

	 	Revolving Loans
	 	 	20	 
	2.2

	 	Competitive Bid Loans
	 	 	24	 
	2.3

	 	Utilization of Alternative Currencies
	 	 	28	 
	2.4

	 	Use of Proceeds
	 	 	29	 
	2.5

	 	Evidence of Debt
	 	 	29	 
	2.6

	 	Swing Line Loans
	 	 	30	 
	2.7

	 	Increase in Total Revolving Credit Commitment
	 	 	32	 
	2.8

	 	Letters of Credit
	 	 	33	 
	2.9

	 	Extension of Stated Termination Date
	 	 	41	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	FUNDING, FEES AND PAYMENT CONVENTIONS	 	 	 	 
	 
	 	 	 	 	 	 
	3.1

	 	Interest Rate Options
	 	 	43	 
	3.2

	 	Conversions and Elections of Subsequent Interest Periods
	 	 	43	 
	3.3

	 	Payment of Interest
	 	 	44	 
	3.4

	 	Prepayments of Eurocurrency Rate Loans
	 	 	45	 
	3.5

	 	Manner of Payment
	 	 	45	 
	3.6

	 	Fees
	 	 	46	 
	3.7

	 	Payments to Agent for Lenders
	 	 	46	 
	3.8

	 	Computation of Rates and Fees
	 	 	46	 
	3.9

	 	Deficiency Advances; Failure to Purchase Participations
	 	 	47	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CHANGE IN CIRCUMSTANCES	 	 	 	 
	 
	 	 	 	 	 	 
	4.1

	 	Increased Cost and Reduced Return
	 	 	47	 
	4.2

	 	Limitation on Types of Loans
	 	 	49	 
	4.3

	 	Illegality
	 	 	49	 
	4.4

	 	Treatment of Affected Loans
	 	 	50	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	4.5

	 	Compensation
	 	 	50	 
	4.6

	 	Taxes
	 	 	51	 
	4.7

	 	Change of Lending Office
	 	 	53	 
	4.8

	 	Substitution of Lenders
	 	 	53	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT	 	 	 	 
	 
	 	 	 	 	 	 
	5.1

	 	Conditions of Closing
	 	 	53	 
	5.2

	 	Conditions of Revolving Loans, Letters of Credit, Swing Line
Loans and Competitive Bid Loans
	 	 	55	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	6.1

	 	Corporate Existence and Power
	 	 	56	 
	6.2

	 	Corporate and Governmental Authorization; No Contravention
	 	 	57	 
	6.3

	 	Material Subsidiaries
	 	 	57	 
	6.4

	 	Binding Effect
	 	 	57	 
	6.5

	 	Financial Information
	 	 	57	 
	6.6

	 	Litigation
	 	 	57	 
	6.7

	 	Compliance with ERISA
	 	 	58	 
	6.8

	 	Environmental Matters
	 	 	58	 
	6.9

	 	Taxes
	 	 	58	 
	6.10

	 	Margin Stock
	 	 	58	 
	6.11

	 	Investment Company
	 	 	59	 
	6.12

	 	Full Disclosure
	 	 	59	 
	6.13

	 	No Consents, Etc
	 	 	59	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	AFFIRMATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	7.1

	 	Financial Reports, Etc.
	 	 	59	 
	7.2

	 	Payment of Taxes
	 	 	62	 
	7.3

	 	Maintenance of Properties; Insurance
	 	 	62	 
	7.4

	 	Compliance with Laws
	 	 	62	 
	7.5

	 	Books and Records
	 	 	62	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	8.1

	 	Consolidated Indebtedness to Consolidated Capitalization
	 	 	63	 
	8.2

	 	Liens
	 	 	63	 
	8.3

	 	Indebtedness of Subsidiaries
	 	 	64	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	8.4

	 	Consolidations, Mergers and Sales of Assets
	 	 	64	 
	8.5

	 	Change in Control
	 	 	64	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	EVENTS OF DEFAULT AND ACCELERATION	 	 	 	 
	 
	 	 	 	 	 	 
	9.1

	 	Events of Default
	 	 	65	 
	9.2

	 	Agent to Act
	 	 	67	 
	9.3

	 	Cumulative Rights
	 	 	67	 
	9.4

	 	No Waiver
	 	 	68	 
	9.5

	 	Allocation of Proceeds
	 	 	68	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	THE AGENT	 	 	 	 
	 
	 	 	 	 	 	 
	10.1

	 	Appointment and Authority
	 	 	69	 
	10.2

	 	Rights as a Lender
	 	 	69	 
	10.3

	 	Exculpatory Provisions
	 	 	69	 
	10.4

	 	Reliance by Agent
	 	 	70	 
	10.5

	 	Delegation of Duties
	 	 	70	 
	10.6

	 	Resignation of Agent
	 	 	70	 
	10.7

	 	Non-Reliance on Agent and Other Lenders
	 	 	71	 
	10.8

	 	No Other Duties, Etc.
	 	 	71	 
	10.9

	 	Agent May File Proofs of Claim
	 	 	71	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE XI	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	11.1

	 	Assignments and Participations
	 	 	72	 
	11.2

	 	Notices; Effectiveness; Electronic Communication
	 	 	75	 
	11.3

	 	Right of Set-off; Adjustments
	 	 	78	 
	11.4

	 	Survival
	 	 	79	 
	11.5

	 	Expenses
	 	 	79	 
	11.6

	 	Amendments and Waivers
	 	 	79	 
	11.7

	 	Counterparts
	 	 	80	 
	11.8

	 	Termination
	 	 	80	 
	11.9

	 	Indemnification; Limitation of Liability
	 	 	81	 
	11.10

	 	Severability
	 	 	81	 
	11.11

	 	Integration
	 	 	81	 
	11.12

	 	Agreement Controls
	 	 	82	 
	11.13

	 	Governing Law; Waiver of Jury Trial
	 	 	82	 
	11.14

	 	Confidentiality
	 	 	83	 
	11.15

	 	“Know Your Customer” Checks; PATRIOT Act Notice
	 	 	83	 






iii









 






	 	 	 	 	 
	 	 	 	 	Page
	 
	EXHIBIT A

	 	Applicable Commitment Percentages
	 	A-1
	EXHIBIT B

	 	Form of Assignment and Assumption
	 	B-1
	EXHIBIT C

	 	Notice of Appointment (or Revocation) of Authorized Representative
	 	C-1
	EXHIBIT D-1

	 	Form of Borrowing Notice
	 	D-1
	EXHIBIT D-2

	 	Form of Borrowing Notice—Swing Line Loans
	 	D-2-1
	EXHIBIT E

	 	Form of Interest Rate Selection Notice
	 	E-1
	EXHIBIT F

	 	Form of Note
	 	F-1
	EXHIBIT G

	 	Compliance Certificate
	 	G-1
	EXHIBIT H

	 	Form of Competitive Bid Quote Request
	 	I-1
	EXHIBIT I

	 	Form of Competitive Bid Quote
	 	J-2
	EXHIBIT J

	 	Form of Amendment Agreement
	 	K-1
	 
	SCHEDULE 1.01

	 	Mandatory Cost	 	 
	 
	SCHEDULE 2.8(a)

	 	Existing Letters of Credit	 	 







iv











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of October 15, 2007 (the “Agreement”), is made by and
among:



     V.F. CORPORATION, a Pennsylvania corporation having its principal place of business in
Greensboro, North Carolina (the “Borrower”),



     BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of
the United States, in its capacity as a Lender (“Bank of America”), and each other
financial institution executing and delivering a signature page hereto and each other financial
institution which may hereafter become a Lender pursuant to Section 2.7 or execute and
deliver an instrument of assignment with respect to this Agreement pursuant to Section 11.1
(hereinafter such financial institutions may be referred to individually as a “Lender” or
collectively as the “Lenders”),



     BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of
the United States, in its capacity as Administrative Agent for the Lenders (in such capacity, and
together with any successor agent appointed in accordance with the terms of Section 10.7,
the “Agent”) and as Swing Line Lender,



     CITIBANK, N.A., a national banking association organized and existing under the laws of the
United States, in its capacity as Syndication Agent and as Lender,



     WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, in its capacity as Documentation Agent and as Lender, and



     JPMORGAN CHASE BANK, N.A., a national banking association organized and existing under the
laws of the United States, in its capacity as Documentation Agent and as Lender;



WITNESSETH:




     WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a
revolving credit facility of up to $1,000,000,000 (which may be increased to $1,250,000,000), the
proceeds of which are to be used for general corporate purposes including, without limitation,
acquisitions and repurchases of outstanding shares of its common stock and which shall include a
multi-currency credit facility of up to $250,000,000 in readily available currencies, a letter of
credit facility of up to $100,000,000, and a swing line facility of up to $100,000,000; and



     WHEREAS, the Lenders are willing to make such revolving credit facilities available to the
Borrower upon the terms and conditions set forth herein;



 









 





     NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as follows:



ARTICLE I




DEFINITIONS AND TERMS




     1.1 Definitions. For the purposes of this Agreement, in addition to the definitions
set forth above, the following terms shall have the respective meanings set forth below:



     “Absolute Rate” shall have the meaning assigned to such term in Section
2.2(c)(ii)(C).



     “Absolute Rate Loan” means a Loan the interest rate on which is determined on the
basis of the Absolute Rate for such Loan.



     “Acquisition” means the acquisition of an equity interest in another Person (including
the purchase of an option, warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase
of such equity interest or upon exercise of an option or warrant for, or conversion of securities
into such equity interest, made with the intent to hold such equity interest as a strategic
investment and not for speculative purposes.



     “Additional Commitment Lender” has the meaning specified in Section 2.9(d).



     “Advance” means a borrowing under the Revolving Credit Facility consisting of a Base
Rate Loan or a Eurocurrency Rate Loan.



     “Advance Date Exchange Rate” means, with respect to a specified Advance, Loan or
Letter of Credit in an Alternative Currency, the Spot Rate of Exchange determined for the date such
Advance is originally made or the date such Letter of Credit is originally issued, provided
that, if such Advance or Loan is Continued for a subsequent Interest Period pursuant to Section
2.3(b), the Advance Date Exchange Rate with respect to such Loan shall be the Spot Rate of
Exchange two Business Days preceding the effective date of the latest Continuation of such Advance
or Loan, and the Dollar Equivalent Amount of such Advance or Loan shall be adjusted as set forth in
Section 2.3.



     “Affiliate” means, as to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. A Person
shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or
indirectly, power to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.



     “Agent” shall have the meaning assigned to such term in the preamble hereto.



     “Agent-Related Persons” means the Agent (including any successor administrative
agent), together with its Affiliates, and the officers, directors, employees, agents and attorneys-
in-fact of such Persons and Affiliates.



2









 





     “Alternative Currency” means (a) in the case of Revolving Loans, Japanese yen, British
pounds sterling, Swiss francs, the Euro and any other freely available currency notified to the
Agent upon not less than three (3) Business Days’ prior written notice that, in the opinion of all
Lenders, in their sole discretion, is at such time freely traded in the offshore interbank foreign
exchange markets and is freely transferable and convertible into Dollars in the United States
currency market, and (b) in the case of Competitive Bid Loans, Japanese yen, British pounds
sterling, Swiss francs, the Euro, Canadian dollars, Mexican pesos and any other freely available
currency notified to the Agent upon not less than three (3) Business Days’ prior written notice
that, in the opinion of the applicable Competitive Bid Lender, in its sole discretion, is at such
time freely traded in the offshore interbank foreign exchange markets and is freely transferable
and convertible into Dollars in the United States currency market.



     “Alternative Currency Equivalent Amount” means with respect to a specified Alternative
Currency and a specified Dollar amount, the amount of such Alternative Currency into which such
Dollar amount would be converted, based on the applicable Advance Date Exchange Rate.



     “Applicable Commitment Percentage” means, for each Lender at any time, a fraction,
with respect to the Revolving Credit Facility and Letters of Credit, the numerator of which shall
be such Lender’s Revolving Credit Commitment and the denominator of which shall be the Total
Revolving Credit Commitment, which Applicable Commitment Percentage for each Lender as of the
Closing Date is as set forth in Exhibit A hereto; provided that the Applicable
Commitment Percentage of each Lender shall be increased or decreased to reflect the addition of
Lenders pursuant to Section 2.7 and any assignments to or by such Lender effected in
accordance with Section 11.1.



     “Applicable Facility Fee” means that percent per annum set forth below, which shall be
based upon the higher Rating of outstanding senior unsecured Indebtedness of the Borrower existing
at the date of determination as specified in the table below; provided, however
that if there is a split in Ratings of more than one Tier, the Applicable Facility Fee shall be
based upon the Tier that is one tier lower than the higher Rating:



	 	 	 	 	 	 	 
	 	 	Rating S&P or	 	Applicable Facility
	Tier	 	Moody’s	 	Fee
	I

	 	≥ A + or ≥ A1
	 	 	0.040	%
	II

	 	A or A2
	 	 	0.050	%
	III

	 	A- or A3
	 	 	0.060	%
	IV

	 	BBB+ or Baa1
	 	 	0.080	%
	V

	 	BBB or Baa2
	 	 	0.090	%
	VI

	 	≤ BBB- or ≤ Baa3
	 	 	0.125	%





The Applicable Facility Fee shall be established from time to time based upon the Ratings in effect
from time to time. Any change in the Applicable Facility Fee due to a change in any Rating shall
be effective on the date of such change in such Rating.




     “Applicable Lending Office” means, as to any Lender, the office or offices described
as such in such Lender’s administrative questionnaire in the form provided by the Agent, or such
other office of such Lender (or an affiliate of such Lender) as such Lender may from time to time
specify to the Agent and the Borrower by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained.



3









 





     “Applicable Margin” means that percent per annum set forth below, which shall be based
upon the higher Rating of outstanding senior unsecured Indebtedness of the Borrower existing at the
date of determination as specified in the table below; provided, however that if
there is a split in Ratings of more than one Tier, the Applicable Margin shall be based upon the
Tier that is one tier lower than the higher Rating:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable Margin	 	 
	 	 	 	 	for Eurocurrency Rat	 	 
	 	 	 	 	Loan, Letters of	 	 
	 	 	Rating S&P or	 	Credit and Swing	 	Applicable
	Tier	 	Moody’s	 	Line Loans	 	Utilization Fee
	I

	 	≥ A + or ≥ A1
	 	 	0.135	%	 	 	0.050	%
	II

	 	A or A2
	 	 	0.150	%	 	 	0.050	%
	III

	 	A- or A3
	 	 	0.190	%	 	 	0.050	%
	IV

	 	BBB+ or Baa1
	 	 	0.270	%	 	 	0.100	%
	V

	 	BBB or Baa2
	 	 	0.360	%	 	 	0.100	%
	V

	 	≤ BBB- or ≤ Baa3
	 	 	0.525	%	 	 	0.100	%





provided, however, that for each day during which the Outstandings exceed fifty
percent (50%) of the Total Revolving Credit Commitment, the Applicable Utilization Fee shall
automatically be added to the Applicable Margin set forth above. The Applicable Margin shall be
established from time to time based upon the Ratings in effect from time to time. Any change in
the Applicable Margin due to a change in any Rating shall be effective on the date of such change
in such Rating.




     “Applicable Utilization Fee” means that percent per annum set forth in the table in
the definition of “Applicable Margin”, which shall be calculated as set forth in the
proviso of the definition of “Applicable Margin”. The Applicable Utilization Fee shall be
established from time to time based on the Ratings in effect from time to time. Any change in the
Applicable Utilization Fee due to a change in any Rating shall be effective on the date of such
change in such Rating.



     “Assignment and Assumption” shall mean an Assignment and Assumption in the form of
Exhibit B hereto(with blanks appropriately filled in) delivered to the Agent in connection
with an assignment of a Lender’s interest under this Agreement pursuant to Section 11.1.



     “Authorized Representative” means, with respect to the Borrower, any of the Chairman
of the Board, President, Vice President-Treasurer, or any other Vice President of the Borrower, or
any other Person expressly designated by the written authorization of any of the foregoing as an
Authorized Representative, as set forth from time to time in a certificate in the form of
Exhibit C hereto.



     “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



4









 







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 Loan” means a Loan for which the rate of interest is determined by
reference to the Base Rate.



     “Base Rate Refunding Loan” means a Base Rate Loan made to satisfy Unreimbursed Amounts
arising from a drawing denominated in Dollars under a Letter of Credit.



     “Base Rate Revolving Loan” means a Revolving Loan for which the rate of interest is
determined by reference to the Base Rate.



     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of
Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.



     “Board” means the Board of Governors of the Federal Reserve System (or any successor
body).



     “Borrower” shall have the meaning assigned to such term in the preamble hereto.



     “Borrower’s Account” means a demand deposit account with the Agent, Account Number
1290918490 or any successor account with the Agent, which may be maintained at one or more offices
of the Agent or an agent of the Agent.



     “Borrowing Notice” means the notice delivered by an Authorized Representative in
connection with an Advance under the Revolving Credit Facility or a Swing Line Loan, in the forms
of Exhibits D-1 and D-2 hereto, respectively.



     “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
where the Agent’s Office with respect to Obligations denominated in Dollars is located and:




     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such
day on which dealings in deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market;




     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day
which is a TARGET Day;



5









 






     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or
other applicable offshore interbank market for such currency; and




     (d) if such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a
currency other than Dollars or Euro, or any other dealings in any currency other than
Dollars or Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which
banks are open for foreign exchange business in the principal financial center of the
country of such currency.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the
benefit of the L/C Issuers 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 Agent and the
L/C Issuers (which documents are hereby consented to by the Lenders). Derivatives of such term
shall have corresponding meaning.



     “Capital Leases” means all leases which have been capitalized in accordance with GAAP
as in effect from time to time including Statement No. 13 of the Financial Accounting Standards
Board and any related amendments, interpretations and successors thereof.



     “Change of Control” means, at any time:




     (i) any person or group of persons (within the meaning of Section 13 or 14 of the
Exchange Act, other than the Trust, shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Exchange Act ), of 35% or more of the outstanding shares of
Voting Securities of the Borrower;




     (ii) as of any date a majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the corresponding date
of the previous year, (B) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described in clause
(A), or (C) selected or nominated to become directors by the Board of Directors of the
Borrower of which a majority consisted of individuals described in clauses (A) and (B).



     “Closing Date” means the date as of which this Agreement is executed by the Borrower,
the Lenders and the Agent and on which the conditions set forth in Section 5.1 have been
satisfied or waived.



     “Code” means the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.



     “Competitive Bid Borrowing” shall have the meaning assigned to such term in
Section 2.2(b) and shall consist of one or more Competitive Bid Loans.



6









 





     “Competitive Bid Lender” means any Lender who has made a Competitive Bid Loan for
which there are Competitive Bid Outstandings.



     “Competitive Bid Loans” means the Loans provided for by Section 2.2, each of
which shall be Absolute Rate Loans.



     “Competitive Bid Outstandings” means, as of any date of determination, the aggregate
principal amount of all Competitive Bid Loans then outstanding.



     “Competitive Bid Quote” means an offer in accordance with Section 2.2(c) by a
Lender to make a Competitive Bid Loan at an Absolute Rate, which shall be in substantially the form
of Exhibit I hereto and incorporated herein by reference.



     “Competitive Bid Quote Request” shall have the meaning assigned to such term in
Section 2.2(b) and shall be substantially in the form of Exhibit H hereto and
incorporated herein by reference.



     “Consistent Basis” in reference to the application of GAAP means the accounting
principles observed in the period referred to are comparable in all material respects to those
applied in the preparation of the audited financial statements of the Borrower referred to in
Section 6.5(a) (except for those changes concurred in by the Borrower’s independent public
accountants).



     “Consolidated Capitalization” means, as of any date on which the amount thereof is to
be determined, the sum of Consolidated Indebtedness plus Consolidated Net Worth.



     “Consolidated Indebtedness” means, as of any date on which the amount thereof is to be
determined, all Funded Indebtedness of the Borrower and its Subsidiaries, all determined on a
consolidated basis.



     “Consolidated Net Worth” means, as of any date on which the amount thereof is to be
determined, the consolidated stockholders’ equity of the Borrower and its Subsidiaries, all as
determined on a consolidated basis in accordance with GAAP applied on a Consistent Basis.



     “Continue”, “Continuation”, and “Continued” shall refer to the
continuation pursuant to Section 2.3(b) or 3.2 hereof of a Eurocurrency Rate
Revolving Loan from one Interest Period to the next Interest Period.



     “Convert”, “Conversion”, and “Converted” shall refer to a conversion
pursuant to Section 3.2 of one Type of Revolving Loan denominated in Dollars into another
Type of Revolving Loan denominated in Dollars.



     “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.



7









 





     “Default” means any event or condition which, with the giving or receipt of notice or
lapse of time or both unless cured or waived, would constitute an Event of Default hereunder.



     “Default Rate” means (i) with respect to each Fixed Rate Loan, until the end of the
Interest Period applicable thereto, a rate of one percent (1%) above the Fixed Rate applicable to
such Loan, and thereafter at a rate of interest per annum which shall be one percent (1%) above the
rate that would be applicable to a Eurocurrency Rate Loan with a three month Interest Period made
on the date of the payment default to which such Default Rate applies, (ii) with respect to Base
Rate Loans, fees, and other amounts payable in respect of Obligations, a rate of interest per annum
which shall be one percent (1%) above the Base Rate and (iii) in any case, the maximum rate
permitted by applicable law, if lower.



     “Dollar Equivalent Amount” means, (a) the amount denominated in Dollars, and (b) with
respect to a specified Alternative Currency amount, the amount of Dollars into which the
Alternative Currency amount would be converted, based on the applicable Advance Date Exchange Rate.



     “Dollars” and the symbol “$” means dollars constituting legal tender for the
payment of public and private debts in the United States of America.



     “Eligible Assignee” has the meaning specified in Section 11.1(g).



     “EMU Legislation” means (a) the Treaty on European Union (the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998), and (b) legislative measures of the European Council (including without
limitation European Council regulations) for the introduction of, changeover to or operation of the
Euro, in each case as amended or supplemented from time to time.



     “Environmental Laws” means any federal, state, local or foreign statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating, relating to, or
imposing liability or standards of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery Act,
as amended; the Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the Clean
Water Act, as amended; together with all regulations promulgated thereunder, and any other
“Superfund” or “Superlien” law.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute and all rules and regulations promulgated thereunder.



     “ERISA Group” means the Borrower, any Subsidiary and 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 or any Subsidiary, are treated as a single employer under
Section 414 of the Code.



8









 





     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, (a) the Applicable Margin with respect to Eurocurrency Rate Loans, plus (b) 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 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 deposits in the relevant currency (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 “Eurocurrency Rate” for such Interest
Period shall be the rate per annum determined by the Agent to be the rate at which deposits in the
relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency 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 (or other Bank of America branch or Affiliate) to major banks in the London or other
offshore interbank market for such currency at their request at approximately 11:00 A.M. (London
time) two Business Days prior to the commencement of such Interest Period.



     “Eurocurrency Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Revolving Loans denominated in an Alternative Currency must be Eurocurrency Rate
Loans.



     “Event of Default” means any of the occurrences set forth as such in Section
9.1.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder.



     “Existing Letter of Credit” means each letter of credit identified on Schedule
2.8(a).



     “Extending Lender” has the meaning specified in Section 2.9(e).



     “Extension Date” has the meaning specified in Section 2.9(a).



     “Facility Termination Date” means such date as all of the following shall have
occurred: (a) the Borrower shall have permanently terminated the Revolving Credit Facility and the
Swing Line by payment in full of all Outstandings, together with all accrued and unpaid interest
thereon, except for such issued and undrawn Letters of Credit as have been fully Cash
Collateralized in a manner consistent with that set forth in Section 9.1; (b) all Revolving
Credit Commitments shall have terminated or expired and (c) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all Obligations (other than Obligations consisting of
continuing indemnities and other contingent Obligations of the Borrower that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive termination of this Agreement);



9









 





     “Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) 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 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 charged to Bank of
America on such day on such transactions as determined by the Agent.



     “Fixed Rate” means any of the Eurocurrency Rate or the Absolute Rate, or both of the
foregoing, as the case may be.



     “Fixed Rate Loan” means a Eurocurrency Rate Loan or an Absolute Rate Loan, or both of
the foregoing, as the case may be.



     “Funded Indebtedness” means with respect to any Person, without duplication, (a) all
indebtedness in respect of borrowed money, (b) all obligations under Capital Leases, (c) the
deferred purchase price of any property or services that are in the nature of money borrowed, and
(d) indebtedness evidenced by a promissory note, bond, debenture or similar written obligation for
the payment of money (including non-contingent, past-due obligations under reimbursement agreements
and conditional sales or similar title retention agreements), other than (x) trade payables and
accrued expenses incurred in the ordinary course of business, and (y) indebtedness secured by cash
deposits subject to a legal right of set-off and not classified as a liability under GAAP.



     “Funding Bank” means (a) in the case of Revolving Loans, any banking institution
approved by the Agent located within a country whose currency has been approved by the Lenders as
an Alternative Currency and (b) in the case of Competitive Bid Loans, any banking institution
approved by the applicable Competitive Bid Lender located within a country whose currency has been
approved by such Competitive Bid Lender as an Alternative Currency for a particular Competitive Bid
Loan; provided that in the case of the Euro, the Funding Bank may be located in any
Participating Member State.



     “GAAP” or “Generally Accepted Accounting Principles” means generally accepted
accounting principles, being those principles of accounting set forth in pronouncements of the
Financial Accounting Standards Board, the American Institute of Certified Public Accountants, or
which have other substantial authoritative support and are applicable in the circumstances as of
the date of a report.



     “Governmental Authority” shall mean any federal, state, municipal, national or other
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.



10









 





     “Guarantee” by any Person means any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Indebtedness 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 purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) and the purpose of such contracts is to provide credit
support in the nature of a guaranty or (b) entered into for the purpose of assuring in any other
manner the holder of such Indebtedness of the payment thereof or to protect such holder 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.



     “Hazardous Material” means and includes any pollutant, contaminant, or hazardous,
toxic or dangerous waste, substance or material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling, storage, transportation,
disposal, treatment, release, discharge or emission of which is subject to any Environmental Law.



     “Indebtedness” means as to any Person, without duplication, (a) all Funded
Indebtedness of such Person, (b) all indebtedness secured by any Lien on any property or asset
owned or held by such Person regardless or whether the indebtedness secured thereby shall have been
assumed by such Person or is non-recourse to the credit of such Person, other than indebtedness
secured by cash deposits subject to a legal right of set-off and not classified as a liability
under GAAP, and (c) all Indebtedness of third parties Guaranteed by such Person.



     “Indemnified Liabilities” has the meaning set forth in Section 11.9.



     “Indemnified Parties” has the meaning set forth in Section 11.9.



     “Interest Period” means (a) with respect to any Competitive Bid Loan, the period
commencing on the date such Competitive Bid Loan is made and ending on the date specified in the
Competitive Bid Quote Request and related Competitive Bid Quote for such Competitive Bid Loan; and
(b) with respect to any Eurocurrency Rate Loan, a period commencing on the date such Eurocurrency
Rate Loan is made or Converted or Continued and ending, at the Borrower’s option, on the date one,
two, three or six months (and, subject to Section 2.1(c)(iii), nine or twelve months)
thereafter as notified to the Agent by the Authorized Representative in accordance with the terms
hereof; provided that,




     (i) if any Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next Business Day (unless, in the case of a
Eurocurrency Rate Loan, such extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest Period shall end on the next
preceding Business Day); and




     (ii) any Interest Period for a Eurocurrency Rate Loan which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically



11









 







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




     (iii) no Interest Period shall extend beyond the final Stated Termination Date.



     “Interest Rate Selection Notice” means, with respect to the Revolving Loans, the
written notice delivered by an Authorized Representative in connection with the election of a
subsequent Interest Period for any Eurocurrency Rate Revolving Loan or the Conversion of any
Eurocurrency Rate Loan denominated in Dollars into a Base Rate Loan or the Conversion of any Base
Rate Loan into a Eurocurrency Rate Loan denominated in Dollars in the form of Exhibit E
hereto.



     “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 Commitment 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 when made or refinanced as a Base Rate
Refunding Loan. All L/C Borrowings shall be denominated in Dollars.



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



     “L/C Issuer” means each of the two Lenders designated, and accepting such designation,
pursuant to Section 2.8(l) as an issuer of Letters of Credit hereunder, or any successor
issuer of Letters of Credit hereunder.



     “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, all 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 of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Letter of Credit Application
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. 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 Agent.



12









 





     “Letter of Credit” means any letter of credit issued hereunder, and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.



     “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 applicable L/C Issuer.



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of the Total Revolving
Credit Commitment and $100,000,000. The Letter of Credit Sublimit is part of, and not in addition
to, the Total Revolving Credit Commitment.



     “Lien” means any interest in property securing any obligation owed to, or a claim by,
a Person other than the owner of the property, whether such interest is based on the common law,
statute or contract, and including but not limited to the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. For the purposes of this Agreement, the Borrower
and any Subsidiary shall be deemed to be the owner of any property which it has acquired or holds
subject to a conditional sale agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other Person for security purposes.



     “Loans” means, collectively, the Swing Line Loans, the L/C Borrowings, the Competitive
Bid Loans and the Revolving Loans.



     “Loan Documents” means this Agreement, the Notes, and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor of any Lender or the Agent
in connection with the Loans made and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from the time to time.



     “Loan Party” shall have the meaning assigned to such term in Section 11.14.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.



     “Margin Stock” shall have the meaning of such term within Regulation U of the Board.



     “Material Adverse Effect” means a material adverse effect on (i) the business,
financial position or results of operations of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to pay or perform its respective obligations, liabilities and
indebtedness under the Loan Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the Agent or any Lender under any
Loan Document or the validity, legality or enforceability thereof.



13









 





     “Material Plan” means, at any time, a Plan or Plans having aggregate Unfunded
Liabilities in excess of $100,000,000.



     “Material Subsidiary” means at any time any Subsidiary which as of such time meets the
definition of a “significant subsidiary” contained as of the date hereof in Regulation S-X of the
Securities and Exchange Commission.



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



     “Multiemployer Plan” means at any time an employee benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making, or is accruing
an obligation to make, contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a member of the ERISA
Group during such five-year period.



     “New Lenders” has the meaning specified in Section 2.7(a).



     “Non-Extending Lender” has the meaning specified in Section 2.9(b).



     “Notes” means, collectively, the promissory notes of the Borrower evidencing Loans
executed and delivered to the Lenders as provided in Section 2.5 substantially in the form
of Exhibit F hereto, with appropriate insertions as to amounts, dates and names of Lenders.



     “Notice Date” has the meaning specified in Section 2.9(b).



     “Obligations” means the obligations, liabilities and Indebtedness of the Borrower with
respect to (i) the principal and interest on the Loans as evidenced by the Notes, and (ii) the
payment and performance of all other obligations, liabilities and Indebtedness of the Borrower to
the Lenders or the Agent hereunder, under any one or more of the other Loan Documents or with
respect to the Loans.



     “Organizational Documents” means with respect to any corporation, limited liability
company, partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, the articles of incorporation, certificate of
incorporation, articles of organization, articles of association, certificate of limited
partnership or other applicable organizational or charter documents relating to the creation of
such entity.



     “Other Taxes” shall have the meaning assigned to such term in Section 4.6.



     “Outstandings” means, collectively, at any date without duplication, the Competitive
Bid Outstandings, the Swing Line Outstandings, the L/C Obligations and the Revolving Credit
Outstandings on such date.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking
industry rules on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable



14









 







Alternative Currency, in an amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of
America in the applicable offshore interbank market for such currency to major banks in such
interbank market.



     “Participant” shall have the meaning assigned to such term in Section 11.1(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “Participation” means (i) with respect to each Swing Line Loan, the extension of
credit represented by the participation of each Lender (other than the Swing Line Lender) hereunder
in the liability of the Swing Line Lender in respect of such Swing Line Loan made by the Swing Line
Lender in accordance with the terms hereof and (ii) with respect to each L/C Credit Extension, the
extension of credit represented by the L/C Advance of each Lender (other than the applicable L/C
Issuer) hereunder in the liability of any L/C Issuer in respect to such L/C Credit Extension made
by such L/C Issuer in accordance with the terms hereof.



     “PBGC” means the Pension Benefit Guaranty Corporation and any successor thereto.



     “Person” means an individual, partnership, corporation, limited liability company,
limited liability partnership, trust, unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof.



     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a member of the ERISA
Group.



     “Principal Office” means the principal office of Bank of America, presently located at
101 North Tryon Street, 15th Floor, NC1 001-15-02, Charlotte, North Carolina 28255, Attention:
Agency Services, or such other office and address as the Agent may from time to time designate.



     “Quotation Date” shall have the meaning assigned to such term in Section
2.2(c).



     “Rating” means the rating of senior unsecured Indebtedness of the Borrower in effect
at any time such rating is made by either of Moody’s or S&P.



     “Regulation D” means Regulation D of the Board as the same may be amended or
supplemented from time to time.



     “Required Lenders” means, as of any date, Lenders on such date having Credit Exposures
(as defined below) aggregating more than 50% of the aggregate Credit Exposures of all the Lenders
on such date. For purposes of the preceding sentence, the amount of the “Credit Exposure”
of each Lender shall be equal at all times (a) other than following the occurrence and during the
continuance of an Event of Default, to its Revolving Credit Commitment, and



15









 







(b) following the occurrence and during the continuance of an Event of Default, to the sum of (i)
the aggregate principal amount of such Lender’s Applicable Commitment Percentage of Revolving
Credit Outstandings plus (ii) the amount of such Lender’s Applicable Commitment Percentage of Swing
Line Outstandings plus (iii) the amount of such Lender’s Competitive Bid Outstandings plus (iv) the
amount of such Lender’s Applicable Commitment Percentage of L/C Obligations; provided that,
for the purpose of this definition only, (A) if any Lender shall have wrongfully failed to fund its
Applicable Commitment Percentage of any Advance, then the Revolving Credit Commitment of such
Lender shall be deemed reduced by the amount it so failed to fund for so long as such failure shall
continue and such Lender’s Credit Exposure attributable to such failure shall be deemed held by any
Lender making more than its Applicable Commitment Percentage of such Advance to the extent it
covers such failure, (B) if any Lender shall have wrongfully failed to pay to the Swing Line Lender
on demand its Applicable Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender’s Credit Exposure attributable to all Swing Line
Outstandings shall be deemed to be held by the Swing Line Lender until such Lender shall pay such
deficiency amount to the Swing Line Lender together with interest thereon as provided in
Section 3.9 and (C) if any Lender shall have wrongfully failed to pay to any L/C Issuer on
demand its Applicable Commitment Percentage of any L/C Credit Extension (whether by funding its
participation therein or otherwise), such Lender’s Credit Exposure attributable to all L/C
Obligations shall be deemed to be held by the applicable L/C Issuer until such Lender shall pay
such deficiency amount to the applicable L/C Issuer together with interest thereon as provided in
Section 3.9;



     “Revolving Credit Commitment” means, with respect to each Lender, the obligation of
such Lender to make Revolving Loans to the Borrower up to an aggregate principal amount at any one
time outstanding equal to such Lender’s Applicable Commitment Percentage of the Total Revolving
Credit Commitment.



     “Revolving Credit Facility” means the facility described in Section 2.1 hereof
providing for Loans to the Borrower by the Lenders in the aggregate principal amount of the Total
Revolving Credit Commitment.



     “Revolving Credit Outstandings” means, as of any date of determination, the aggregate
principal amount of all Revolving Loans then outstanding.



     “Revolving Loan” means any borrowing pursuant to an Advance under the Revolving Credit
Facility in accordance with Section 2.1 and may be a Base Rate Loan or a Eurocurrency Rate
Loan.



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Agent or the L/C Issuer, as the case
may be, to be customary in the place of disbursement or payment for the settlement of international
banking transactions in the relevant Alternative Currency.



     “Significant Subsidiary” means at any time any Subsidiary, except Subsidiaries which
at such time have been designated by the Borrower (by notice to the Agent, which may be amended
from time to time, which notices shall be made available by the Agent to the Lenders upon



16









 







request) as nonmaterial and which, if aggregated and considered as a single Subsidiary, would
not meet the definition of “significant subsidiary” in Regulation S-X of the Securities and
Exchange Commission.



     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw-Hill.



     “Spot Rate of Exchange” means (i) in determining the Dollar Equivalent Amount of a
specified Alternative Currency amount as of any date, the spot exchange rate determined by the
Agent in accordance with its usual procedures for the purchase by the Agent of Dollars with such
Alternative Currency at approximately 10:00 A.M. on the Business Day that is two (2) Business Days
prior to such date, and (ii) in determining the Alternative Currency Equivalent Amount of a
specified Dollar amount on any date, the spot exchange rate determined by the Agent in accordance
with its usual procedures for the purchase by the Agent of such Alternative Currency with Dollars
at approximately 10:00 A.M. on the Business Day that is two Business Days prior to such date.



     “Stated Termination Date” means October 15, 2012, subject to the extension thereof
pursuant to Section 2.9; provided, however that the Stated Termination Date
for any Lender that is a Non-Consenting Lender to any requested extension pursuant to Section
2.9 shall be the Stated Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.



     “Subsidiary” means any corporation or other entity in which more than 50% of its
outstanding Voting Securities or more than 50% of all equity interests is owned directly or
indirectly by the Borrower and/or by one or more of the Borrower’s Subsidiaries.



     “Swing Line” means the revolving line of credit established by the Swing Line Lender
in favor of the Borrower pursuant to Section 2.6.



     “Swing Line Lender” means initially Bank of America as the lender of Swing Line Loans
under Section 2.6 and thereafter any Lender which is successor to Bank of America as the
Lender of Swing Line Loans under Section 2.6.



     “Swing Line Loans” means loans made by the Swing Line Lender to the Borrower pursuant
to Section 2.6.



     “Swing Line Outstandings” means, as of any date of determination, the aggregate
principal amount of all Swing Line Loans then outstanding.



     “Swing Line Rate” means, as of any date of determination, the Federal Funds Rate plus
the Applicable Margin with respect to Swing Line Loans.



     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “Taxes” shall have the meaning assigned to such term in Section 4.6(a).




17












 





     “Termination Date” means, as to any Lender, the earliest of (i) the Stated Termination
Date applicable to such Lender, (ii) the date of termination of the Lenders’ obligations pursuant
to Section 9.1 upon the occurrence of an Event of Default, or (iii) the date the Borrower
voluntarily and permanently terminates the Commitments in accordance with Section 2.1(e)
hereof.



     “Total Alternative Currency Sublimit” means, with respect to the principal amount of
Loans and the stated amount of Letters of Credit outstanding in Alternative Currencies, the Dollar
Equivalent Amount of $250,000,000.



     “Total Revolving Credit Commitment” means a principal amount equal to (a)
$1,000,000,000 or (b) at such time as Exhibit A hereto is amended by the entering into of
one or more amendment agreements pursuant to Section 2.7 hereof, an amount equal to up to
$1,250,000,000, as such amounts are reduced from time to time in accordance with Section
2.1(e).



     “Trust” means the respective trusts established under those certain deeds of trust
dated August 21, 1951 made by John E. Barbey and under the will of John E. Barbey, deceased.



     “Type” shall mean any type of Loan (i.e., a Base Rate Loan, a Eurocurrency Rate Loan
or an Absolute Rate Loan).



     “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if
any) by which (i) the value of all benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (ii) the fair market value of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.



     “Unreimbursed Amount” has the meaning specified in Section 2.8(c)(i).



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



     “Wholly Owned Subsidiary” means any Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors’ qualifying shares and, in the case of any
Subsidiary organized in a jurisdiction outside of the United States, shares not exceeding 5% of
total shares) are at the time directly or indirectly owned by the Borrower.



     1.2 Rules of Interpretation.



          (a) All accounting terms not specifically defined herein shall have the meanings assigned to
such terms and shall be interpreted in accordance with GAAP applied on a Consistent Basis;
provided that, if the Borrower notifies the Agent that the Borrower wishes to



18









 






amend any covenant in Article VIII to eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Agent notifies the Borrower that the Required Lenders
wish to amend Article VIII for such purpose), then the Borrower’s compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Borrower and the Required Lenders.




          (b) Each term defined in Articles 1, 8 or 9 of the New York Uniform Commercial Code shall have
the meaning given therein unless otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case such terms shall have the
meaning given in the Uniform Commercial Code of the applicable jurisdiction.




          (c) The headings, subheadings and table of contents used herein or in any other Loan Document
are solely for convenience of reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.




          (d) Except as otherwise expressly provided, references in any Loan Document to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and schedules are references to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and schedules in or to such
Loan Document.




          (e) All definitions set forth herein or in any other Loan Document shall apply to the singular
as well as the plural form of such defined term, and all references to the masculine gender shall
include reference to the feminine or neuter gender, and vice versa, as the context may require.




          (f) When used herein or in any other Loan Document, words such as “hereunder”, “hereto”,
“hereof” and “herein” and other words of like import shall, unless the context clearly indicates to
the contrary, refer to the whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof.




          (g) References to “including” means including without limiting the generality of any
description preceding such term, and for purposes hereof the rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable to an enumeration of specific
matters, to matters similar to those specifically mentioned.




          (h) Except as otherwise expressly provided, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).




          (i) Whenever interest rates or fees are established in whole or in part by reference to a
numerical percentage expressed as “%”, such arithmetic expression shall be interpreted in
accordance with the convention that 1% = 100 basis points.




          (j) Each of the parties to the Loan Documents and their counsel have reviewed and revised, or
requested (or had the opportunity to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting



19









 






party shall be inapplicable in the construing and interpretation of the Loan Documents and all
exhibits, schedules and appendices thereto.




          (k) Any reference to an officer of the Borrower or any other Person by reference to the title
of such officer shall be deemed to refer to each other officer of such Person, however titled,
exercising the same or substantially similar functions.




          (l) All references to any agreement or document as amended, modified or supplemented, or words
of similar effect, shall mean such document or agreement, as the case may be, as amended, modified
or supplemented from time to time only as and to the extent permitted therein and in the Loan
Documents.




          (m) For all purposes of this Agreement (but not for purposes of the preparation of any
financial statements delivered pursuant hereto), the equivalent in any Alternative Currency of an
amount in Dollars, and the equivalent in Dollars of an amount in any Alternative Currency, shall be
determined as set forth in the definitions of Dollar Equivalent Amount and Alternative Currency
Equivalent Amount, as applicable.




     1.3 Change of Currency.



          (a) Each obligation of the Borrowers to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Revolving Credit Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Revolving Credit Borrowing, at the end of the then current Interest Period.




          (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Agent may from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any relevant market conventions or
practices relating to the Euro.




          (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Agent may from time to time specify to be appropriate to reflect a change in
currency of any other country and any relevant market conventions or practices relating to the
change in currency.




ARTICLE II




THE CREDIT FACILITIES




     2.1 Revolving Loans.



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          (a) Commitment. Subject to the terms and conditions of this Agreement, each Lender
severally agrees to make Advances in Dollars or an Alternative Currency (as specified in the
respective Borrowing Notice) to the Borrower under the Revolving Credit Facility from time to time
from the Closing Date until the Termination Date applicable to such Lender on a pro rata basis as
to the total borrowing requested by the Borrower on any day determined by such Lender’s Applicable
Commitment Percentage up to but not exceeding a Dollar Equivalent Amount equal to the Revolving
Credit Commitment of such Lender, provided, however, that the Lenders will not be
required and shall have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Agent has accelerated the maturity of any
of the Notes as a result of an Event of Default; provided further, however,
that immediately after giving effect to each such Advance, (x) the Dollar Equivalent Amount of the
principal amount of Outstandings shall not exceed the then applicable Total Revolving Credit
Commitment, (y) the Dollar Equivalent Amount of the Outstandings in Alternative Currencies shall
not exceed the Total Alternative Currency Sublimit, and (z) the aggregate principal balance of all
outstanding Revolving Loans (other than Competitive Bid Loans) for each Lender, plus such Lender’s
Applicable Commitment Percentage (determined without duplication) of Competitive Bid Outstandings,
L/C Obligations and Swing Line Outstandings, shall not exceed such Lender’s Revolving Credit
Commitment. Within such limits and subject to the other terms and conditions of this Agreement,
the Borrower may borrow, repay and reborrow under the Revolving Credit Facility on a Business Day
from the Closing Date until, but (as to borrowings and reborrowings) not including, the final
Termination Date.




          (b) Amounts. Except as otherwise permitted by the Lenders from time to time, (i) the
aggregate unpaid principal Dollar Equivalent Amount of Outstandings shall not exceed at any time
the Total Revolving Credit Commitment, and (ii) the aggregate unpaid principal Dollar Equivalent
Amount of Loans in Alternative Currencies shall not exceed by more than 5% of the Total Alternative
Currency Sublimit, and, in the event the Agent notifies the Borrower at any time that there shall
be outstanding any amount in excess of 105% of the Total Alternative Currency Sublimit, then within
two Business Days after receipt of such notice the Borrower shall make such payments and
prepayments as shall be necessary to comply with this restriction. Each Advance under the
Revolving Credit Facility, other than Base Rate Refunding Loans, shall be in an amount of at least
$10,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency), and, if greater
than $10,000,000, an integral multiple of $1,000,000 (or the Dollar Equivalent Amount thereof in
any Alternative Currency).




          (c) Advances. (i) An Authorized Representative shall give the Agent:





     (1) at least three (3) Business Days’ irrevocable telephonic notice of each
Eurocurrency Rate Loan (whether representing an additional borrowing or the Continuation of
a borrowing hereunder or the Conversion of a borrowing hereunder from a Base Rate Revolving
Loan to a Eurocurrency Rate Loan) prior to 2:00 P.M.; and




     (2) irrevocable telephonic notice of each Base Rate Revolving Loan (whether
representing an additional borrowing hereunder or the Conversion of a borrowing hereunder
from a Eurocurrency Rate Revolving Loan denominated in Dollars to a Base Rate Revolving
Loan) prior to 12:00 noon on the day of such proposed Revolving Loan.



21









 




Each such notice shall be effective upon receipt by the Agent, shall specify the amount of the
borrowing, the Type of Revolving Loan (Base Rate or Eurocurrency Rate if such Revolving Loan is
requested in Dollars, or Eurocurrency Rate if such Revolving Loan is requested in an Alternative
Currency), the date of borrowing, if a Eurocurrency Rate Revolving Loan, the Interest Period to be
used in the computation of interest, and if an Eurocurrency Rate Loan not denominated in Dollars,
the applicable Alternative Currency. The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice in the form of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions but failure to provide such
confirmation shall not affect the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be, together with the amount of
each Lender’s portion of an Advance requested thereunder, shall be provided by the Agent to each
Lender by telefacsimile transmission with reasonable promptness, but (provided the Agent shall have
received such notice by 12:00 noon) not later than 1:00 P.M. or (if the Agent shall have received
such notice by 2:00 P.M. but after 12:00 noon) not later than 3:00 P.M. on the same day as the
Agent’s receipt of such notice. At approximately 11:00 A.M. two (2) Business Days preceding the
date specified for an Advance of an Alternative Currency, the Agent shall determine the Advance
Date Exchange Rate and the applicable interest rate. Not later than 11:45 A.M. two (2) Business
Days preceding the date specified for each Advance of an Alternative Currency, the Agent shall
provide the Borrower and each Lender notice by telefacsimile transmission of the Advance Date
Exchange Rate applicable to such Advance, and the applicable Alternative Currency Equivalent Amount
of the Loan or Loans required to be made by each Lender on such date and the applicable
Eurocurrency Rate.




     (ii) (A) In the case of Advances consisting of Base Rate Loans, not later than 2:00 P.M. on
the date specified for each borrowing under this Section 2.1, each Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make the amount of the Advance or Advances
to be made by it on such day available by wire transfer to the Agent in the amount of its pro rata
share, determined according to such Lender’s Applicable Commitment Percentage of the Revolving Loan
or Revolving Loans to be made on such day. Such wire transfer shall be directed to the Agent at the
Principal Office and shall be in the form of Dollars constituting immediately available funds. The
amount so received by the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Borrower by delivery of the proceeds thereof to the Borrower’s Account or
otherwise as shall be directed in the applicable Borrowing Notice by the Authorized Representative
and reasonably acceptable to the Agent.



          (B) In the case of Advances consisting of Eurocurrency Rate Loans, not later than 10:00 A.M.
on the date specified for each Advance, each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Revolving Loan or Revolving Loans to be made
by it on such day available to the Borrower, if in Dollars in the manner specified in Section
2.1(c)(ii)(A) and if in an Alternative Currency at the Funding Bank, to the account of the Agent
with the Funding Bank. The amount so received by the Funding Bank shall, subject to the terms and
conditions of the Loan Documents and upon instruction from the Agent to the Funding Bank on the
same day or immediately preceding day but no later than 10:00 A.M., be made available to the
Borrower by delivery of the Alternative Currency Equivalent Amount to the Borrower’s account with
the Funding Bank.




22









 








     (iii) If requested by the Borrower through the Agent, before 12:00 noon at least four Business
Days before the beginning of any Interest Period applicable to a Eurocurrency Rate Loan, each
Lender will advise the Agent before 10:00 A.M. three Business Days preceding the beginning of such
Interest Period as to whether, if the Borrower selects an Interest Period of nine or twelve months,
such Lender expects that deposits in Dollars or the applicable Alternative Currency, as the case
may be, with a term corresponding to such Interest Period will be available to it two Business Days
preceding such Interest Period in the amount and for the duration required to fund the Eurocurrency
Rate Loan to which such Interest Period would apply. If, but only if, each Lender confirms that it
expects such deposits to be available to it on terms acceptable to such Lender, in its own
discretion, then the Borrower shall be entitled to select a duration of nine or twelve months for
such Interest Period.



          (d) Repayment of Revolving Loans. (i) The principal amount of each Revolving Loan
shall be due and payable to the Agent for the benefit of each Lender in full on the Termination
Date applicable to such Lender, or earlier as specifically provided herein. The principal amount
of any Revolving Loan may be prepaid without penalty or premium in whole or in part on any Business
Day, upon (A) at least three (3) Business Days’ irrevocable telephonic notice in the case of each
Eurocurrency Rate Revolving Loan from an Authorized Representative (effective upon receipt) to the
Agent prior to 12:00 noon and (B) irrevocable telephonic notice in the case of each Base Rate
Revolving Loan from an Authorized Representative (effective upon receipt) to the Agent prior to
12:00 noon on the day of such proposed repayment. The Agent shall give the Lenders prompt notice
of all such notices of prepayment. The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice but failure to provide such confirmation shall not
affect the validity of such telephonic notice. All prepayments of Revolving Loans made by the
Borrower shall be in the Dollar Equivalent Amount of $10,000,000 or such greater Dollar Equivalent
Amount which is an integral multiple of $1,000,000 (provided that repayments in an
Alternative Currency shall be approximately equal to such amounts), or the amount equal to all
Revolving Credit Outstandings, or such other amount as necessary to comply with Section
2.1(b). Any prepayment of a Eurocurrency Rate Revolving Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant to Section
4.5.




     (ii) Unless the Borrower or any Lender has notified the Agent, prior to the date any payment
is required to be made by it to the Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Agent may assume that the Borrower or such Lender, as the
case may be, has timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Agent in Same Day Funds, then:




     (A) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Agent the portion of such assumed payment that was made available to such
Lender in Same Day Funds, together with interest thereon in respect of each day from and
including the date such amount was made available by the Agent to such Lender to the date
such amount is repaid to the Agent in Same Day Funds, at the applicable Overnight Rate from
time to time in effect; and



23









 






     (B) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Agent the amount thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by the Agent to the Borrower to the
date such amount is recovered by the Agent (the “Compensation Period”) at a rate per
annum equal to the applicable Overnight Rate from time to time in effect. If such Lender
pays such amount to the Agent, then such amount shall constitute such Lender’s Revolving
Loan or Competitive Bid Loan, as the case may be, included in the applicable Advance. If
such Lender does not pay such amount forthwith upon the Agent’s demand therefor, the Agent
may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the
Agent, together with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Advance. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Revolving Credit Commitment
or to prejudice any rights which the Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.



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



          (e) Reductions. The Borrower shall, by notice from an Authorized Representative, have
the right from time to time, upon not less than three (3) Business Days’ written notice to the
Agent, effective upon receipt, to reduce the Total Revolving Credit Commitment, which reduction
shall be applied pro rata to the Revolving Credit Commitments of the Lenders. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice, telefacsimile notice, or
telephonic notice (confirmed in writing), of such reduction. Each such reduction shall be in the
aggregate amount of $10,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Revolving Credit Commitment, and shall permanently reduce
the Total Revolving Credit Commitment. Each reduction of the Total Revolving Credit Commitment
shall be accompanied by payment of the Loans to the extent that the principal amount of
Outstandings exceeds the Total Revolving Credit Commitment after giving effect to such reduction,
together with accrued and unpaid interest on the amounts prepaid and any amount required under
Section 4.5.




     2.2 Competitive Bid Loans.



          (a) In addition to borrowings of Revolving Loans, at any time prior to the final Termination
Date and provided that no Default or Event of Default has occurred and is continuing, the Borrower
may, as set forth in this Section 2.2, request the Lenders to make offers to make
Competitive Bid Loans to the Borrower in Dollars or in an Alternative Currency. The Lenders may,
but shall have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers. Competitive Bid Loans shall be Absolute Rate Loans.
Immediately after giving effect to each Competitive Bid Loan (i) the aggregate Dollar Equivalent
Amount of Outstandings shall not exceed the then applicable Total Revolving Credit Commitment and
(ii) the aggregate Dollar Equivalent Amount of Outstandings in Alternative Currencies shall not
exceed the Total Alternative Currency Sublimit. Each Competitive Bid Loan shall be deemed to be a
usage of the available amount of each Lender’s Revolving Credit Commitment in amount equal to such
Lender’s Applicable Commitment Percentage of such



24









 






Competitive Bid Loan, notwithstanding that such Lender may have advanced all, some or none of
the principal amount of such Competitive Bid Loan. The principal amount of each Competitive Bid
Loan shall be due and payable to the Agent for the benefit of the applicable Competitive Bid Lender
in full at the end of the Interest Period with respect to such Competitive Bid Loan, or earlier as
specifically provided herein.




          (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give
the Agent (which shall promptly notify the Lenders) notice (a “Competitive Bid Quote
Request”) to be received no later than (i) in the case of Competitive Bid Loans requested in an
Alternative Currency, 12:00 noon on the date that is at least three (3) Business Days prior to the
date of such proposed borrowing and (ii) in the case of Competitive Bid Loans requested in Dollars,
1:00 P.M. on the Business Day immediately preceding the date of borrowing proposed therein (or such
other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may
agree). The Borrower may request offers from the Lenders to make Competitive Bid Loans for more
than one Interest Period in a single notice; provided that the request for each separate
Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate
borrowing (a “Competitive Bid Borrowing”) of one or more Competitive Bid Loans from the
Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit
H hereto and shall specify as to each Competitive Bid Borrowing:





     (i) the proposed date of such Competitive Bid Borrowing, which shall be a Business Day;




     (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least
$10,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) or a
larger integral multiple of $1,000,000 (or the Dollar Equivalent Amount thereof in any
Alternative Currency) but shall not cause the limits specified in Section 2.2(a) to be
violated;




     (iii) the duration of the Interest Period applicable thereto;




     (iv) the requested Alternative Currency if the Competitive Bid Borrowing is in an
Alternative Currency; and




     (v) if the Borrower would like Competitive Bid Quotes submitted for a proposed
Competitive Bid Borrowing in Dollars prior to the date of such Competitive Bid Borrowing,
the time and date on which such Competitive Bid Quotes are to be submitted;


Except as otherwise provided in this Section 2.2(b), no Competitive Bid Quote Request shall
be given within five (5) Business Days (or such other number of days as the Borrower and the Agent,
with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.




          (c) (i) Each Lender may submit one or more Competitive Bid Quotes, each containing an offer to
make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided,
that, if the Borrower’s request under Section 2.2(b) specifies more than one



25









 






Interest Period, such Lender may make a single submission containing one or more Competitive
Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the
Agent not later than (x) in the case of a proposed Competitive Bid Borrowing in an Alternative
Currency, 9:30 A.M. on the date that is at least two (2) Business Days prior to the date of such
proposed Competitive Bid Borrowing, (y) in the case of a proposed Competitive Bid Borrowing in
Dollars, 10:00 A.M. on the date of such proposed Competitive Bid Borrowing or such earlier date as
the Borrower may set forth in the Competitive Bid Quote Request or (z) such other time and date as
the Borrower and the Agent, with the consent of the Required Lenders, may agree and the Agent shall
promptly notify all Lenders of such other agreed upon time and date (the date on which such
Competitive Bid Quotes are to be submitted is called the “Quotation Date”);
provided, that any Competitive Bid Quote may be submitted by the Agent (or its Applicable
Lending Office) only if the Agent (or such Applicable Lending Office) notifies the Borrower of the
terms of the offer contained therein not later than 9:15 A.M. (or 15 minutes prior to such other
agreed upon time) on the Quotation Date in the case of Competitive Bid Loans requested in Dollars
and 9:45 A.M. (or 15 minutes prior to such other agreed upon time) on the Quotation Date in the
case of Competitive Bid Loans requested in an Alternative Currency. Subject to the express
provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with
the consent of the Agent given at the instruction of the Borrower.





     (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit I
hereto and shall specify:




     (A) the proposed date of borrowing and the Interest Period therefor;




     (B) the principal amount of the Competitive Bid Loan for which such offer is
being made, which principal amount shall be at least $10,000,000 (or the Dollar
Equivalent Amount thereof in any Alternative Currency) or a larger multiple of
$1,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency);
provided, that the aggregate principal amount of all Competitive Bid Loans
for which a Lender submits Competitive Bid Quotes may not exceed the principal
amount of the Competitive Bid Borrowing for a particular Interest Period for which
offers were requested;




     (C) the rate of interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the
“Absolute Rate”); and




     (D) the identity of the quoting Lender.


Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote shall contain
qualifying, conditional or similar language or propose terms other than or in addition to those set
forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote
may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the
principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made.




26









 








          (d) The Agent shall, as promptly as practicable after the Competitive Bid Quote is submitted
but in any event not later than 10:30 A.M. (or thirty minutes after such other agreed upon time) on
the Quotation Date in the case of Competitive Bid Loans requested in Dollars and 10:00 A.M. (or
thirty minutes after such other agreed upon time) on the Quotation Date in the case of Competitive
Bid Loans requested in an Alternative Currency, notify the Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.2(c) and
(ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Agent unless
such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such
former Competitive Bid Quote. The Agent’s notice to the Borrower shall specify (A) the aggregate
principal amount of the Competitive Bid Loans for which Competitive Bid Quotes have been received
and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying
the Lender that made each Competitive Bid Quote).




          (e) Not later than 11:00 A.M. (or thirty minutes after the Agent has provided the notice
required by Section 2.2(d)) on the Quotation Date for Competitive Bid Loans requested in
Dollars and 11:00 A.M. (or thirty minutes after the Agent has provided the notice required by
Section 2.2(d)) on the Quotation Date for Competitive Bid Loans requested in an Alternative
Currency, the Borrower shall notify the Agent of its acceptance or nonacceptance of the Competitive
Bid Quotes so notified to it pursuant to Section 2.2(d) (and the failure of the Borrower to
give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify
each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal
amount of Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may
accept any Competitive Bid Quote in whole or in part; provided that:





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




     (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least
$10,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) or a
larger multiple of $1,000,000 (or the Dollar Equivalent Amount thereof in any Alternative
Currency) but shall not cause the limits specified in Section 2.2(a) to be violated;




     (iii) acceptance of Competitive Bid Quotes may be made only in ascending order of
Absolute Rates, beginning with the lowest rate so offered; and




     (iv) the Borrower may not accept any offer where the Agent has correctly advised the
Borrower that such offer fails to comply with Section 2.2(c)(ii) or otherwise fails
to comply with the requirements of this Agreement (including, without limitation,
Section 2.2(a)).


If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rates, for an
aggregate principal amount that is greater than the amount in respect of which Competitive Bid
Quotes are accepted for the related Interest Period (after taking into account the acceptance



27









 






of all Competitive Bid Quotes with lower Absolute Rates, if any, offered by any Lender for such
related Interest Period), then the principal amount of the Competitive Bid Loans in respect of
which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such
Lenders as nearly as possible (in amounts of at least $1,000,000 or the Dollar Equivalent Amount
thereof in any Alternative Currency) in proportion to the aggregate principal amount of such
Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and
the lowest bid after adjustment as provided in Section 2.2(e)(iii) shall be conclusive in
the absence of manifest error.




          (f) (i) In the case of Competitive Bid Loans in Dollars, not later than 1:00 P.M. on the date
specified for any Competitive Bid Loan, any Lender whose offer to make such Competitive Bid Loan
has been accepted shall make the amount of such Loan available to the Agent at the Principal Office
in Dollars and in immediately available funds, for account of the Borrower. The amount so received
by the Agent shall, subject to the terms and conditions of this Agreement, be made available to the
Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an
account of the Borrower maintained at the Principal Office or otherwise as shall be directed by an
Authorized Representative and reasonably acceptable to the Agent.





     (ii) In the case of Competitive Bid Loans in an Alternative Currency, not later than
10:00 A.M. on the date specified for any Competitive Bid Loan, any Lender whose offer to
make such Competitive Bid Loan has been accepted shall make the amount of such Loan
available to the Borrower at the Funding Bank, to the account of the applicable Competitive
Bid Lender with the Funding Bank. The amount so received by the Funding Bank shall, subject
to the terms and conditions of the Loan Documents and upon instruction from the Agent to the
Funding Bank on the same day or immediately preceding day but no later than 10:00 A.M., be
made available to the Borrower by delivery of the Alternative Currency Equivalent Amount to
the Borrower’s account with the Funding Bank.



     2.3 Utilization of Alternative Currencies.



     (a) Each request for an Advance or Loan in an Alternative Currency under a Borrowing Notice or
Competitive Bid Quote Request, as the case may be, shall constitute the Borrower’s request for a
Loan of the Dollar Equivalent Amount of the amount of the Alternative Currency specified in such
Borrowing Notice or Competitive Bid Quote Request, as the case may be, and for such Loan to be made
available by the Lenders to the Borrower in the Alternative Currency Equivalent Amount (determined
based on the Advance Date Exchange Rate applicable to such Advance or Loan). The principal amount
outstanding on any Loan shall be recorded in the Agent’s records in Dollars (in the case of an
Advance or Loan in an Alternative Currency as if the Loan had initially been made in Dollars),
based on the Dollar Equivalent Amount of the initial Advance or Loan in an Alternative Currency, as
reduced from time to time by the Dollar Equivalent Amount (based on the Advance Date Exchange Rate
applicable to such Advance or Loan) of any principal payments with respect to such Advance or Loan.
For the purposes of determining the maximum amount of Outstandings hereunder, it is intended by
the parties that all Loans shall be the functional equivalent of Loans made and repaid (based on
the applicable Advance Date Exchange Rate for each Advance) in Dollars. It is



28









 




recognized that one or more Lenders may elect to record Loans or Advances in Alternative
Currencies. The Agent shall maintain records sufficient to identify at any time (A) the Advance
Date Exchange Rate with respect to each Advance and Loan and (B) the portion of the Outstandings
attributable to each Advance.




     (b) The Borrower may elect to Continue a Eurocurrency Rate Loan pursuant to the terms of
Section 3.2(b) and subject to the conditions set forth in this Section 2.3(b). In
the event a Eurocurrency Rate Loan is Continued, such election to Continue the Eurocurrency Rate
Loan shall be treated as an Advance and the Agent shall notify the Borrower and the Lenders of the
Advance Date Exchange Rate, the Interest Period and the rate for such Continued Eurocurrency Rate
Loan. The Lenders shall each be deemed to have made an Advance to the Borrower of its Applicable
Commitment Percentage of each Revolving Loan in an Alternative Currency and the Agent shall apply
the Advance Date Exchange Rate for such new Interest Period to such Continued Alternative Currency
Equivalent Amount to determine the new Dollar Equivalent Amount of such Revolving Loan and shall
adjust its books and the Revolving Credit Outstandings. In the event that such adjustment with
respect to a Continued Revolving Loan would cause (x) the total Dollar Equivalent Amount of
Outstandings to exceed the Total Revolving Credit Commitment or (y) the total Dollar Equivalent
Amount of Outstandings in Alternative Currencies to exceed the Total Alternative Currency Sublimit,
the Borrower shall, immediately on the effective date of such Continuation, repay (a “Rate
Adjustment Payment”) the portion of such Continued Revolving Loan (applying the new Advance
Date Exchange Rate) necessary to ensure that (xx) the Dollar Equivalent Amount of all Outstandings
does not exceed the Total Revolving Credit Commitment and (yy) the Dollar Equivalent Amount of all
Outstandings in Alternative Currencies does not exceed the Total Alternative Currency Sublimit,
provided, however, that the Borrower shall not be required to pay any additional
compensation pursuant to Section 4.5 with respect to a prepayment of a Revolving Loan
required by this sentence if such prepayment is made immediately on the effective date of the
Continuation giving rise to such prepayment and no notice of such prepayment shall be required. If
the Agent does not receive an Interest Rate Selection Notice giving notice of election of the
duration of an Interest Period or Continuation of a Eurocurrency Rate Loan by the time prescribed
in Sections 2.1(c)(i) or 3.2(b) , as applicable, the Borrower shall be deemed to
have elected to Continue such Eurocurrency Rate Loan and selected an Interest Period of one month.
The Borrower shall not be entitled to elect to Continue any Eurocurrency Rate Loan if a Default or
Event of Default shall have occurred and be continuing.



     2.4 Use of Proceeds. The proceeds of the Loans made pursuant to the Revolving Credit
Facility hereunder shall be used by the Borrower for general working capital needs and other lawful
corporate purposes including without limitation the making of acquisitions and, subject to
Section 6.10, repurchases of outstanding shares of its common stock.



     2.5 Evidence of Debt.



     (a) The Loans made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Agent in the ordinary course of business. The accounts or
records maintained by the Agent and each Lender shall be conclusive absent manifest error of the
amount of the Loans 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



29









 




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 Agent in respect of such matters, the
accounts and records of the Agent shall control in the absence of manifest error. Upon the request
of any Lender to the Borrower made through the Agent, the Borrower shall execute and deliver to
such Lender (through the Agent) a Note, which shall evidence such Lender’s Loans to such Borrower
in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse
thereon the date, Type (if applicable), amount, currency 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
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 Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records of the Agent shall
control in the absence of manifest error.



     2.6 Swing Line Loans.



     (a) Notwithstanding any other provision of this Agreement to the contrary, in order to
administer the Revolving Credit Facility in an efficient manner and to minimize the transfer of
funds between the Agent and the Lenders, the Swing Line Lender agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.6, to make available Swing Line
Loans in Dollars to the Borrower prior to the Termination Date applicable to the Swing Line Lender.
The Swing Line Lender shall not be obligated to make any Swing Line Loan pursuant hereto (and
shall not unless otherwise approved by the Required Lenders) (i) if to the actual knowledge of the
Swing Line Lender the Borrower is not in compliance with all the conditions to the making of
Revolving Loans set forth in this Agreement, (ii) if after giving effect to such Swing Line Loan,
the Swing Line Outstandings exceed $100,000,000, or (iii) if after giving effect to such Swing Line
Loan, the Outstandings exceed the then applicable Total Revolving Credit Commitment. Each Swing
Line Loan shall mature, and the principal amount thereof , together with any accrued interest
thereon, shall be payable (if not previously prepaid) in full to the Swing Line Lender on the fifth
Business Day after such Swing Line Loan is made. The Borrower may, subject to the conditions set
forth in the preceding two sentences, borrow, repay and reborrow under this Section 2.6.
Unless notified to the contrary by the Swing Line Lender, borrowings under the Swing Line shall be
made in the minimum amount of $500,000 or, if greater, in amounts which are integral multiples of
$500,000, upon written request by telefacsimile transmission, effective upon receipt, by an
Authorized Representative of the Borrower made to the Swing Line Lender not later than 2:00 P.M. on
the Business Day of the requested borrowing. Each such Borrowing Notice shall specify the amount
of the borrowing and the date of borrowing, and shall be in the form of Exhibit D-2 hereto,
with appropriate insertions. Unless notified to the contrary by the Swing Line Lender, each
repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $500,000 or
the aggregate amount of all Swing Line Outstandings.



     (b) The interest payable on Swing Line Loans is solely for the account of the Swing Line
Lender, except to the extent that Lenders have funded their respective Participations in such



30









 




Swing Line Loans. Swing Line Loans shall bear interest solely at the Swing Line Rate. All
accrued and unpaid interest on Swing Line Loans shall be payable, on the dates and in the manner
provided in Section 3.3 with respect to interest on Base Rate Loans.




     (c) The Borrower, at its option and subject to the terms hereof, may request an Advance
pursuant to Section 2.1 in an amount sufficient to repay Swing Line Outstandings on any
date and the Agent shall provide from the proceeds of such Advance to the Swing Line Lender the
amount necessary to repay such Swing Line Outstandings (which the Swing Line Lender shall then
apply to such repayment) and credit any balance of the Advance in immediately available funds in
the manner directed by the Borrower pursuant to Section 2.1(c)(ii)(A). The proceeds of
such Advances shall be paid to the Swing Line Lender for application to the Swing Line Outstandings
and the Lenders shall then be deemed to have made Loans in the amount of such Advances. The Swing
Line shall continue in effect until the Termination Date applicable to the Swing Line Lender, at
which time all Swing Line Outstandings and accrued interest thereon shall be due and payable in
full.



     (d) (i) Upon the making of a Swing Line Loan in accordance with paragraph (a) above, each
Lender shall be deemed to have purchased from the Swing Line Lender a Participation therein in an
amount equal to that Lender’s Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by the Swing Line Lender, each Lender shall, according to its Applicable Commitment
Percentage of such Swing Line Loan, promptly provide to the Swing Line Lender its purchase price
therefor in an amount equal to its Participation therein. Any Advance made by a Lender pursuant to
demand of the Swing Line Lender of the purchase price of its Participation shall when made be
deemed to be the funding by each Lender of the purchase price of its Participation in such Swing
Line Loan. Each Lender shall make an amount equal to its Applicable Commitment Percentage of the
amount of such Swing Line Loan available to the Agent in Same Day Funds for the account of the
Swing Line Lender at the [Agent’s Office] for Dollar-denominated payments not later than 1:00 P.M.
on the day specified by the Swing Line Lender (if such notice shall have been received by the
Lenders not later than 11:00 A.M. on such day) or not later than 1:00 P.M. on the next succeeding
Business Day (if such notice shall have been received by the Lenders later than 11:00 A.M.),
whereupon each Lender that so makes funds available shall have funded the purchase price of its
Participation in such Swing Line Loan. The Agent shall remit the funds so received to the Swing
Line Lender.




     (ii) If any Lender fails to make available to the 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 2.6(d) by the time specified in Section
2.6(d)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the 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 applicable Overnight Rate from time
to time in effect, 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
funded participation in the relevant Swing Line Loan. A certificate of the Swing Line
Lender submitted to any Lender (through the Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.




31












 






     (iii) Each Lender’s obligation to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.6(d) 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. 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.




     (iv) 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 Commitment
Percentage thereof in the same funds as those received by the Swing Line Lender.




     (v) 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 pursuant
to any Debtor Relief Law or otherwise (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 Commitment Percentage thereof on demand of the 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 applicable Overnight Rate. The 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.



     2.7 Increase in Total Revolving Credit Commitment. (a) The Borrower, the Agent and any
Lender or any other Person qualifying as an Eligible Assignee but for the absence of an assignment,
or any combination of such Lenders and such Persons (collectively, “New Lenders”), may (in
their sole discretion) enter into one or more amendment agreements substantially in the form of
Exhibit J hereto and incorporated herein by reference without further approval of the
Lenders (or any other New Lender) pursuant to which each New Lender agrees to incur or increase, as
the case may be, its Revolving Credit Commitment so as to make available to the Borrower, subject
to all conditions herein set forth, Revolving Loans in the maximum aggregate Dollar Equivalent
Amount (for all New Lenders) of up to $250,000,000 thereby increasing the Total Revolving Credit
Commitment to up to the Dollar Equivalent Amount of $1,250,000,000; provided that




     (i) each such increase shall be in an amount at least equal to $20,000,000 or an
integral multiple of $5,000,000 in excess thereof;




     (ii) the Borrower shall execute and deliver to the Agent (A) board resolutions of the
Borrower certified by its secretary or assistant secretary approving and adopting such
increase, and (B) the legal opinion of either the General Counsel of the Borrower or special
counsel to the Borrower as to the due authorization, execution and delivery of this
Agreement, as amended by such increase, the enforceability thereof and no conflict



32









 







thereof with the Organizational Documents, by-laws and material agreements of the
Borrower, all in form and substance substantially similar to such opinions delivered on the
Closing Date in satisfaction of Section 5.1(a)(ii); and




     (iii) no Default or Event of Default then exists or would arise as a result of any such
increase.



     (b) Upon the execution, delivery and acceptance of the documents required by this Section
2.7, each New Lender shall have all of the rights and obligations of a Lender under this
Agreement. The Agent shall provide the Lenders with notice of the revised Total Revolving Credit
Commitment and the revised Applicable Commitment Percentages of the Lenders, including the New
Lenders.



     (c) Upon the effectiveness of an increase provided for in this Section 2.7, if any
Revolving Loans are then outstanding, the Borrower shall prepay to certain Revolving Lenders an
Outstanding Amount of such Revolving Loans outstanding (including any additional amounts required
pursuant to Section 4.5) and borrow from certain other Revolving Lenders new Revolving
Loans as are necessary so that, after giving effect to such prepayments and Borrowings on such date
of all or any portion of the relevant increase of the Total Revolving Credit Commitment, the
principal balance of all outstanding Revolving Loans owing to each Revolving Lender is equivalent
to each such Lender’s Applicable Commitment Percentage of the Total Revolving Credit Commitment
after giving effect to any nonratable increase in the Total Revolving Credit Commitment resulting
from the exercise of an increase pursuant to this Section 2.7.



     2.8 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.8,
(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 denominated in Dollars or in
one or more Alternative Currencies for the account of the Borrower or any Subsidiary, and to
amend or renew Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally
agree to participate in such Letters of Credit; provided that no L/C Issuer shall be
obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit, if as of the date of such
L/C Credit Extension, the Dollar Equivalent Amount of (w) the Outstandings would exceed the
Total Revolving Credit Commitment, (x) the aggregate principal balance of all outstanding
Revolving Loans (other than Competitive Bid Loans) of any Lender, plus such Lender’s
Applicable Commitment Percentage (determined without duplication) of Competitive Bid
Outstandings, L/C Obligations and Swing Line Outstandings, would exceed such Lender’s
Revolving Credit Commitment, (y) the L/C Obligations would exceed the Letter of Credit
Sublimit, or (z) all L/C Obligations and Loans denominated in Alternative Currencies would
exceed the Total Alternative



33









 







Currency Sublimit. 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.




     (ii) No L/C Issuer shall 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 such L/C Issuer from issuing such
Letter of Credit, or any law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer in good faith deems
material to it;




     (B) subject to Section 2.8(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last renewal, unless the Required Lenders have approved such expiry date;




     (C) 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;




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




     (E) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency; or




     (F) such Letter of Credit is in a face amount less than $50,000 or is to be
denominated in a currency other than Dollars or an Alternative Currency.




     (iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)
such 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.




     (iv) The Lenders acknowledge that the Existing Letters of Credit have been issued for
the account of the Borrower prior to the Closing Date and agree to participate in such
Existing Letters of Credit to the same extent and on the same conditions as if such Letters
of Credit had been issued pursuant to this Section 2.8. All Existing Letters of



34









 







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.




     (v) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the Letter of Credit Application associated therewith, and such L/C
Issuer shall have all of the benefits and immunities (A) provided to the Agent in Article X
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 the Letter of Credit
Applications pertaining to such Letters of Credit as fully as if the term “Agent” as
used in Article X 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-Renewal 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 a L/C Issuer (with a copy to the 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 applicable L/C
Issuer and the Agent not later than 11:00 A.M., at least two Business Days (five Business
Days for Letters of Credit denominated in an Alternative Currency) (or such later date and
time as such L/C Issuer may agree in a particular instance in its 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 such 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 such 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 applicable 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
such L/C Issuer may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Agent (by telephone or in writing) that the Agent has received
a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer
will provide the Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation
from the Agent that the requested issuance or amendment is permitted in accordance with the
terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the Borrower or enter into
the applicable amendment, as the case may be, in each case in accordance with such 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 applicable L/C Issuer a risk



35









 







participation in such Letter of Credit in an amount equal to the product of such
Lender’s Applicable Commitment Percentage times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in it sole and absolute discretion, agree to issue a Letter of
Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of
Credit”); provided that any such Auto-Renewal Letter of Credit must permit such
L/C Issuer to prevent any such renewal 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 “Nonrenewal 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 such L/C Issuer, the Borrower shall not be required to make a specific
request to such L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not require) such L/C
Issuer to permit the renewal of such Letter of Credit at any time to a date not later than
the Letter of Credit Expiration Date; provided, however that such L/C Issuer
shall not permit any such renewal if (A) such L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms hereof, or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is
two Business Days before the Nonrenewal Notice Date (1) from the Agent that the Required
Lenders have elected not to permit such renewal or (2) from the Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 5.2 is
not then satisfied.




     (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
applicable L/C Issuer will also deliver to the Borrower and the 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 applicable L/C Issuer shall notify the Borrower and
the Agent thereof. The Borrower shall reimburse such L/C Issuer through the Agent in an
amount equal to the Dollar Equivalent Amount of such drawing (x) if the Borrower shall have
received notice of such drawing prior to 10:00 A.M. on any date, not later than 5:00 P.M. on
such date, and (y) if the Borrower shall have received notice of such drawing after 10:00
A.M. on any date, not later than 2:00 P.M. on the next Business Day after such date. If the
Borrower fails so to reimburse such L/C Issuer by such time, the Agent shall promptly notify
each Lender of the date of payment by the applicable L/C Issuer under such Letter of Credit
(each such date, an “Honor Date”), the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and such Lender’s participation therein. In such event, the
Borrower shall be deemed to have requested an Advance 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 2.1 for the principal amount of Revolving Loans, but subject to
the amount of the unutilized portion of the Total Revolving Credit Commitment and the
conditions set forth in Section 5.2 (other than the



36









 







delivery of a Borrowing Notice). Any notice given by any L/C Issuer or the Agent
pursuant to this Section 2.8(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.




     (ii) Each Lender (including any Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.8(c)(i) make funds available to the Agent for the account of
the applicable L/C Issuer at the Agent’s Office for Dollar-denominated payments or
Alternative Currency-denominated payments, as applicable with respect to such Unreimbursed
Amount, in an amount equal to its Applicable Commitment Percentage of the Unreimbursed
Amount not later than 1:00 P.M., on the Business Day specified in such notice by the Agent,
whereupon, subject to the provisions of Section 2.8(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Eurocurrency Rate Loan with an Interest
Period of one month to the Borrower in such amount and in the currency of such Unreimbursed
Amount. The Agent shall remit the funds so received to the applicable L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by an
Advance of a Base Rate Refunding Loan because the conditions set forth in Section
5.2 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the applicable 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 Agent for the account of such L/C Issuer pursuant to Section
2.8(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 2.8.




     (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.8(c) to reimburse the applicable L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Applicable Commitment Percentage of
such amount shall be solely for the account of such L/C Issuer.




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.8(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against such L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or
(C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however that each Lender’s obligation to make Revolving
Loans pursuant to this Section 2.8(c) is subject to the conditions set forth in
Section 5.2. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse such L/C Issuer for the amount of any payment made
by such L/C Issuer under any Letter of Credit, together with interest as provided herein.



37









 






     (vi) If any Lender fails to make available to the Agent for the account of the
applicable L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.8(c) by the time specified in Section
2.8(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting
through the 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
such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time
in effect, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. A certificate of such L/C Issuer submitted to
any Lender (through the 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 applicable 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 2.8(c), if the Agent receives for the account of such L/C
Issuer any payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the Agent), or any
payment of interest thereon, the Agent will distribute to such Lender its pro rata share
thereof in the same funds as those received by the Agent.




     (ii) If any payment received by the Agent for the account of the applicable L/C Issuer
pursuant to Section 2.8(c)(i) is required to be returned, each Lender shall pay to
the Agent for the account of such L/C Issuer its pro rata share thereof on demand of the
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 applicable Overnight 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 applicable
L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C Borrowing and each
drawing under a Letter of Credit that is refinanced by an Advance of Base Rate Refunding Loans or
Eurocurrency Rate Loans, as applicable, shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all circumstances, including
the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;




     (ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower 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 applicable 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;



38









 






     (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 applicable 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 such 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;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or in the relevant currency markets generally;
or




     (vi) 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.



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



     (f) Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall 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. No Agent-Related Person nor any
of the respective correspondents, participants or assignees of the applicable 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 Letter of Credit Application. 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. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any
of the matters described in clauses (i) through (v) of Section 2.8(e); provided,
however , that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the applicable L/C Issuer, and such L/C Issuer may be liable to the Borrower,
to the extent, but only to the



39









 







extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross
negligence or such 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, any 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 such 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 Agent, (i) if any 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 that has not been repaid, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the
Borrower shall immediately Cash Collateralize the L/C Obligations (in an amount equal to the Dollar
Equivalent Amount of such L/C Obligations determined as of the date of such L/C Borrowing or the
Letter of Credit Expiration Date, as the case may be). The Agent may, at any time and from time to
time after the initial deposit of Cash Collateral, request that additional Cash Collateral be
provided in order to protect against the results of exchange rate fluctuations. The Borrower hereby
grants the Agent, for the benefit of the L/C Issuers and the Lenders, a Lien on all such cash and
deposit account balances. Cash collateral shall be maintained in blocked, interest bearing deposit
accounts with the Agent; provided, however, that if cash collateral is being
provided in connection with the Facility Termination Date, such cash collateral with respect to
each outstanding Letter of Credit shall be maintained in blocked, interest bearing deposit accounts
with the applicable L/C Issuer.



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable
L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of 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) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the “ICC”) at the time of issuance
shall apply to each commercial Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Agent for the account of each
Lender in accordance with its Applicable Commitment Percentage a Letter of Credit fee for each
Letter of Credit equal to the Applicable Margin for Letters of Credit times the Dollar
Equivalent Amount of the actual daily maximum amount available to be drawn under each Letter of
Credit. Such Letter of Credit fee shall be computed on a quarterly basis in arrears. Such fee for
each Letter of Credit shall be due and payable on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the issuance of such
Letter of Credit, and on the Letter of Credit Expiration Date. If there is any change in the
Applicable Margin during any quarter, the actual daily amount of each Letter of Credit shall be



40









 







computed and multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee in an
amount (i) with respect to each commercial Letter of Credit, equal to such percentage as may be
agreed to by the Borrower and the applicable L/C Issuer, of the Dollar Equivalent Amount of such
Letter of Credit, due and payable upon the issuance thereof, and (ii) with respect to each standby
Letter of Credit, equal to such percentage as may be agreed to by the Borrower and the applicable
L/C Issuer, on the Dollar Equivalent Amount of the daily maximum amount available to be drawn
thereunder, 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 issuance of such
Letter of Credit, and on the Letter of Credit Expiration Date. In addition, the Borrower shall pay
directly to the applicable L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such fees and charges are due and
payable on demand and are nonrefundable.



     (k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



     (l) Designation of L/C Issuers. From time to time, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower may designate two L/C Issuers,
provided that (i) a written notice of such designation in form and substance reasonably
satisfactory to the Agent is delivered by the Borrower to the Agent not less than three (3)
Business Days prior to the effectiveness of such designation, which notice shall at a minimum (A)
identify the Lender to be an L/C Issuer, (B) identify the then-existing L/C Issuer being replaced,
if any, and (C) contain the express consent of the identified L/C Issuer to such designation, and
its acceptance of the terms and conditions of this Agreement with respect to Letters of Credit and
the issuance of Letters of Credit by it as an L/C Issuer, and (ii) after giving effect to such
designation, there shall not be more than two L/C Issuers. Notwithstanding the requirements of the
foregoing sentence, but subject to the remainder of this Section 2.8(l), Bank of America is
hereby appointed as an L/C Issuer as of the Closing Date. Without limiting the provisions of
Section 11.1(i), any L/C Issuer so designated hereunder shall continue in such capacity
until (A) it shall, by written notice delivered to the Agent and the Borrower, terminate its status
as L/C Issuer, or (B) the Borrower shall revoke its designation as an L/C Issuer by notice
delivered to the Agent and the applicable L/C Issuer (any such notice shall be effective three (3)
Business Days following receipt by the Agent of such notice or such later date as may be specified
in such notice); provided that no such termination or revocation of designation described
herein shall be permitted or effective until all Letters of Credit issued by such L/C Issuer shall
have expired or otherwise terminated, been assigned by such L/C Issuer in a manner satisfactory to
it, or been Cash Collateralized, and all other L/C Obligations with respect to Letters of Credit
issued by such L/C Issuer shall have been paid and satisfied in full.



     2.9 Extension of Stated Termination Date. (a) Requests for Extension. The
Borrower may, by notice to the Agent (who shall promptly notify the Lenders) not earlier than 60
days and not later than 35 days prior to the first and/or second anniversary of the Closing Date



41









 







(each, an “Extension Date”), request that each Lender extend such Lender’s Stated
Termination Date for an additional one year from the Stated Termination Date applicable to such
Lender.



     (b) Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Agent given not earlier than 30 days prior to the applicable
Extension Date and not later than the date (the “Notice Date”) that is 20 days prior to
such Extension Date, advise the Agent whether or not such Lender agrees to such extension (and each
Lender that determines not to so extend its Stated Termination Date (a “Non Extending
Lender”) shall notify the 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 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 Agent. The Agent shall notify the Borrower of each Lender’s
determination under this Section no later than the date 15 days prior to the applicable Extension
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
11.1; 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 applicable Extension Date, undertake a Revolving Credit Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Revolving Credit Commitment shall be in
addition to such Lender’s Revolving Credit Commitment hereunder on such date).



     (e) Minimum Extension Requirement. If (and only if) the total of the Revolving Credit
Commitments of the Lenders that have agreed so to extend their Stated Termination Date (each, an
“Extending Lender”) and the additional Revolving Credit Commitments of the Additional
Commitment Lenders shall be more than 50% of the aggregate amount of the Revolving Credit
Commitments in effect immediately prior to the Extension Date, then, effective as of the Extension
Date, the Stated Termination Date of each Extending Lender and of each Additional Commitment Lender
shall be extended to the date falling one year after the Stated Termination Date then applicable to
such Lender (except that, if such date is not a Business Day, such Stated Termination 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 Agent a certificate dated as of the Extension Date (i)
certifying and attaching the resolutions adopted by the Borrower approving or consenting to such
extension and (ii) certifying that, before and after giving effect to such extension, (A) the
representations and warranties contained in Article VI are true and correct on and as of
the Extension Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such earlier date, and
except that for purposes of this Section 2.9, the representations and warranties contained
in subsections (a) and (b) of Section 6.5 shall be deemed to refer to the most recent
statements furnished pursuant to



42









 







subsections (a) and (b), respectively, of Section 7.1, and (B) no Default exists. In
addition, on the Stated Termination Date of each Non-Extending Lender, the Borrower shall repay all
Revolving Loans owing to such Non-Extending Lender and outstanding on such date (and pay any
additional amounts required pursuant to Section 4.5) to the extent necessary to keep
outstanding Revolving Loans ratable with any revised Applicable Commitment Percentages of the
respective Lenders effective as of such date.



ARTICLE III




FUNDING, FEES AND PAYMENT CONVENTIONS




     3.1 Interest Rate Options. (a) All Swing Line Loans shall bear interest at the Swing
Line Rate. All Competitive Bid Loans shall be Absolute Rate Loans. All Revolving Loans in
Alternative Currencies shall be Eurocurrency Rate Loans. Revolving Loans in Dollars may be Base
Rate Loans, or Eurocurrency Rate Loans, as the Borrower may elect in the related Borrowing Notice
or Interest Rate Selection Notice, as the case may be.



          (b) Fixed Rate Loans and Base Rate Loans may be outstanding at the same time and, so long as
no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the
option to elect (i) in the case of Revolving Loans made in Dollars, the Type of Revolving Loan
(subject to Section 3.1(a)) and (ii) in the case of all Eurocurrency Rate Revolving Loans,
the duration of the initial and any subsequent Interest Periods and (iii) to Convert Revolving
Loans (other than Eurocurrency Rate Loans denominated in Alternative Currencies which shall be
subject to Section 2.3(b)) in accordance with Sections 2.1(c)(i) and 3.2, as
applicable; provided, however, (x) there shall not be outstanding at any one time
Eurocurrency Rate Loans having more than twenty (20) different Interest Periods and (y) no
Eurocurrency Rate Loan shall have an Interest Period that extends beyond the final Stated
Termination Date. If the Agent does not receive a Borrowing Notice or an Interest Rate Selection
Notice giving notice of election of the duration of an Interest Period or of Conversion of any such
Revolving Loan to or Continuation of any such Revolving Loan as a Eurocurrency Rate Revolving Loan
by the time prescribed by Sections 2.1(c)(i) and 3.2, as applicable, the Borrower shall be
deemed to have elected to obtain or Convert such Revolving Loan to (or Continue such Revolving Loan
as) a Eurocurrency Rate Loan with an Interest Period of one month. The Borrower shall not be
entitled to elect to Continue any Revolving Loan as or Convert any Revolving Loan into a
Eurocurrency Rate Revolving Loan if a Default or Event of Default shall have occurred and be
continuing.




     3.2 Conversions and Elections of Subsequent Interest Periods. Subject to the
limitations set forth in the definition of “Interest Period,” in Sections 2.1(c)(iii) and
3.1 and in Article IV, the Borrower may:



          (a) upon delivery of telephonic notice to the Agent (which shall be irrevocable) on or before
12:00 noon on any Business Day, Convert any Eurocurrency Rate Revolving Loan denominated in Dollars
to a Base Rate Revolving Loan on the last day of the Interest Period for such Eurocurrency Rate
Revolving Loan; and




43









 








          (b) provided that no Default or Event of Default shall have occurred and be
continuing, upon delivery of telephonic notice to the Agent (which shall be irrevocable) on or
before 12:00 noon three (3) Business Days’ prior to the date of such Conversion or Continuation:





     (i) elect a subsequent Interest Period for any Eurocurrency Rate Loan to begin on the
last day of the then current Interest Period for such Eurocurrency Rate Loan (subject to
Section 2.3 with respect to any Eurocurrency Rate Loan denominated in any
Alternative Currency); or




     (ii) Convert any Base Rate Revolving Loan to a Eurocurrency Rate Loan denominated in
Dollars on any Business Day.



     Subject to Section 2.3(b), failure by the Borrower to elect a Conversion or a
Continuation or to provide notice of payment shall result in the automatic Continuation or
Conversion, as the case may be, of the applicable Loan as a Eurocurrency Rate Loan with an Interest
Period of one month. Each such notice shall be effective upon receipt by the Agent, shall specify
the amount of the affected Eurocurrency Rate Loan, the Type of Revolving Loan, and, if a
Continuation as or Conversion into a Eurocurrency Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent written confirmation
of each such telephonic notice in the form of a Borrowing Notice or Interest Rate Selection Notice
(as applicable) with appropriate insertions but failure to provide such confirmation shall not
affect the validity of such telephonic notice. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, shall be provided by the Agent to each Lender
by telefacsimile transmission with reasonable promptness, but (provided the Agent shall have
received such notice by 12:00 noon) not later than 3:00 P.M. on the same day as the Agent’s receipt
of such notice. All such Continuations or Conversions of Revolving Loans shall be effected pro rata
based on the Applicable Commitment Percentages of the Lenders.



     3.3 Payment of Interest. The Borrower shall pay to the Agent interest on the
outstanding and unpaid principal amount of each Loan, (i) for the account of each Lender in the
case of Revolving Loans commencing on the first date of such Revolving Loan until such Revolving
Loan shall be repaid, at the applicable Base Rate or Eurocurrency Rate as designated by the
Borrower in the related Borrowing Notice or Interest Rate Selection Notice or as otherwise provided
hereunder plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom) the Mandatory Cost, (ii) for the account of the Swing Line
Lender in the case of Swing Line Loans at the Swing Line Rate, and (iii) for the account of each
Competitive Bid Lender, for the period commencing on the date of such Competitive Bid Loan until
such Competitive Bid Loan is paid in full at the Absolute Rate. Interest on each Loan shall be paid
on the earlier of (a) in the case of any Base Rate Revolving Loan, quarterly in arrears of the last
Business Day of each March, June, September and December, commencing on December 31, 2007, until
the final Termination Date, at which date the entire principal amount of and all accrued interest
on the Loans shall be paid in full, (b) in the case of any Swing Line Loan, as provided in
Section 2.6(a) and (b), (c) in the case of any Fixed Rate Loan, on last day of the
applicable Interest Period for such Fixed Rate Loan and if such Interest Period extends for more
than three (3) months, at intervals of three (3) months after the first day of such Interest
Period, and (d) upon payment in full of the related Loan; provided, however that if
any Event of Default shall occur and be continuing, all amounts outstanding



44









 







hereunder shall bear interest, so long as such Event of Default is continuing, until paid in
full at the Default Rate notwithstanding any provision herein to the contrary.



     3.4 Prepayments of Eurocurrency Rate Loans. Subject to Section 2.3(b),
whenever any payment of principal shall be made in respect of any Loan hereunder, whether at
maturity, on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurocurrency Rate Loan shall be prepaid in whole or
in part prior to the last day of the Interest Period applicable to such Eurocurrency Rate Loan,
such payment of principal shall be accompanied by the additional payment, if any, required by
Section 4.5.



     3.5 Manner of Payment. (a) The principal amount of all Outstandings shall be due and
payable to the Agent for the benefit of each Lender, the Competitive Bid Lender, each L/C Issuer or
the Swing Line Lender, as the case may be, in full on the Termination Date applicable to such
Lender, Competitive Bid Lender, L/C Issuer or Swing Line Lender, as the case may be, or earlier as
specifically provided herein. Such principal amount shall be recorded in Dollars as set forth in
Section 2.3. The repayment of such principal amount shall be made in Dollars if the Loan
was made in Dollars. If the Loan was made in an Alternative Currency, the portion of the Revolving
Credit Outstandings attributable to each Advance (or the Continuation thereof) and the portion of
Competitive Bid Outstandings attributable to each Competitive Bid Borrowing (each as determined
from the Agent’s records) shall be repaid in the same Alternative Currency as such Advance or
Competitive Bid Borrowing. Each payment of principal (including any prepayment) and payment of
interest and fees, and any other amount required to be paid by or on behalf of the Borrower to the
Lenders, the Competitive Bid Lenders, the Agent, each L/C Issuer or the Swing Line Lender with
respect to any Loan, shall be made to the Agent (i) in Dollars at the Principal Office in the case
of Loans made in Dollars and (ii) in the same Alternative Currency at the Funding Bank in the case
of Loans made in Alternative Currencies, in immediately available funds without setoff, recoupment,
deduction or counterclaim on or before 2:00 P.M. on the date such payment is due; provided
that in the case of Competitive Bid Loans made in Alternative Currencies, such payment shall be
made to the applicable Competitive Bid Lender at the Funding Bank. The Borrower shall give the
Agent not less than one (1) Business Day prior written notice of any payment of principal, such
notice to be given prior to 2:00 P.M. and to specify the date the payment will be made and the Loan
to which payment relates. In the case of Loans made in Dollars, the Agent may, but shall not be
obligated to, debit the amount of such payment from any one or more ordinary deposit accounts of
the Borrower with the Agent.



          (b) Any payment made by or on behalf of the Borrower shall be made both (i) in Dollars in the
case of Loans made in Dollars and in the required Alternative Currency in the case of Loans made in
Alternative Currencies and in immediately available funds and (ii) prior to 2:00 P.M. on the date
such payment is to be made. Any such payment shall not be deemed to be received until the time such
funds become available. Interest shall continue to accrue at the Default Rate on any principal or
fees as to which no payment is made from the date such amount was due and payable until the date
such funds become available.




          (c) In the event that any payment hereunder becomes due and payable on a day other than a
Business Day, then such due date shall be extended to the next succeeding Business Day unless
provided otherwise under the definition of “Interest Period”; provided,




45









 








however that interest shall continue to accrue during the period of any such
extension; and provided further, however, that in no event shall any such
due date be extended beyond the final Termination Date.



     3.6 Fees.



          (a) Facility Fee. For the period beginning on and including the Closing Date and
ending on (but excluding) the final Termination Date, the Borrower agrees to pay to the Agent, for
the pro rata benefit of the Lenders based on their Applicable Commitment Percentages, a facility
fee equal to the Applicable Facility Fee multiplied by the Total Revolving Credit Commitment
without giving effect to any Outstandings. Such fees shall be due in arrears on the last Business
Day of each March, June, September and December commencing December 31, 2007 to and on the final
Termination Date. Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not be entitled to
receive payment of its pro rata share of such fee until such Lender shall make available such
portion.




          (b) Administrative Fees. The Borrower agrees to pay to the Agent, for the Agent’s
individual account, an annual administrative fee, such fee to be payable in such amounts and at
such dates as from time to time agreed to by the Borrower and Agent in writing.




          (c) Competitive Bid Fees. The Borrower agrees to pay to the Agent, for the Agent’s
individual account, an administrative fee of $1,500 for each Competitive Bid Quote Request made by
the Borrower, such fee to be payable at the time of each Competitive Bid Quote Request.




     3.7 Payments to Agent for Lenders. Except as otherwise specified herein, (i) each
payment on account of the principal of and interest on Revolving Loans, the fees described in
Section 3.6, and Swing Line Loans as to which the Lenders have funded their respective
Participations which remain outstanding, shall be made to the Agent for the account of the Lenders
pro rata based on their Applicable Commitment Percentages, (ii) except with respect to Swing Line
Loans as to which the Lenders have funded their respective Participations which remain outstanding,
each payment on account of the principal of and interest on Swing Line Loans shall be made to the
Agent for the account of the Swing Line Lender, (iii) each payment on account of the principal of
and interest on a Competitive Bid Loan shall be made to the Agent for the account of the respective
Competitive Bid Lender making such Competitive Bid Loan, (iv) each payment on account of the
principal of and interest on L/C Borrowings shall be made to the Agent for the account of the
applicable L/C Issuer, and (v) the Agent will promptly distribute to the Lenders, the Swing Line
Lender or Competitive Bid Lenders, as the case may be, in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.



     3.8 Computation of Rates and Fees. Except as may be otherwise expressly provided, (a)
interest on Base Rate Loans shall be computed on the basis of a year of 365/366 days and calculated
for actual days elapsed and (b) all other interest rates (including each Fixed Rate and the Default
Rate) and fees shall be computed on the basis of a year of 360 days and calculated for actual days
elapsed.



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     3.9 Deficiency Advances; Failure to Purchase Participations. No Lender shall be
responsible for any default of any other Lender in respect to such other Lender’s obligation to
make any Loan or Advance hereunder or to fund its purchase of any Participation hereunder nor shall
the Revolving Credit Commitment of any Lender hereunder be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrower as herein provided, the Agent may in its discretion, but
shall not be obligated to, advance all or any portion of such amount or amounts (each, a
“deficiency advance”) and shall thereafter be entitled to payments of principal of and interest on
such deficiency advance in the same manner and at the same interest rate or rates to which such
other Lender would have been entitled had it made such Advance; provided that, (i) such
defaulting Lender shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Agent by the Borrower on each Loan comprising the deficiency advance
at the interest rate per annum for overnight borrowing by the Agent from the Federal Reserve Bank,
then such payment shall be credited against the full payment of such deficiency advance and the
Borrower shall be deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any payments of interest
were made by the Borrower thereon.



ARTICLE IV




CHANGE IN CIRCUMSTANCES




     4.1 Increased Cost and Reduced Return.



          (a) If, after the date hereof, the adoption of any applicable law, rule, or regulation, or any
change in any applicable law, rule, or regulation (other than any such adoption or change relating
to Taxes or Other Taxes, the compensation for which is governed by Section 4.6), or any
change in the interpretation or administration thereof by any Governmental Authority, central bank,
or comparable agency charged with the interpretation or administration thereof, or compliance by
any Lender (or its Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such Governmental Authority, central bank, or comparable agency:





     (i) shall impose, modify, or deem applicable any reserve, special deposit, assessment,
or similar requirement (other than the reserve requirement contemplated by Section
4.1(e)) relating to any extensions of credit or other assets of, or any deposits with or
other liabilities or commitments of, such Lender (or its Applicable Lending Office),
including the Revolving Credit Commitment of such Lender hereunder; or




     (ii) shall impose on such Lender (or its Applicable Lending Office) or on the London
interbank market any other condition affecting this Agreement or any Note issued to it or
any of such extensions of credit or liabilities or commitments;



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and the result of any of the foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) of making, Converting into, Continuing, or maintaining any Fixed Rate Loans or
issuing or participating in Letters of Credit or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under this Agreement or any Note issued to it with
respect to any Fixed Rate Loans or Letters of Credit, then the Borrower shall pay to such Lender
within 15 days of demand for such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the Borrower under this
Section 4.1(a), the Borrower may, by notice to such Lender (with a copy to the Agent),
suspend the obligation of such Lender to make or Continue Loans of the Type with respect to which
such compensation is requested, or to Convert Loans of any other Type into Loans of such Type,
until the event or condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 4.4 shall be applicable); provided that such suspension shall
not affect the right of such Lender to receive the compensation so requested.




          (b) If, after the date hereof, any Lender shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender as a consequence of
such Lender’s obligations hereunder to a level below that which such Lender or such corporation
could have achieved but for such adoption, change, request, or directive (taking into consideration
its policies with respect to capital adequacy), then from time to time within 15 days after demand
by such Lender (with a copy to the Agent) the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.




          (c) Each Lender shall promptly notify the Borrower and the Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 4.1 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming compensation
under this Section 4.1 shall furnish to the Borrower and the Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder and the calculation thereof in
reasonable detail which shall be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.




          (d) Failure or delay on the part of any Lender to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that the
Borrower shall not be under any obligation to compensate any Lender under clauses (a) or (b) above
with respect to increased costs or reduction in return on capital with respect to any period prior
to the date that is three months prior to such request if such Lender knew or could reasonably have
been expected to be aware of the circumstances giving rise to such increased costs or reductions in
return on capital and of the fact that such circumstances


48









 







would in fact result in a claim for increased compensation by reason of such increased costs
or reductions in capital; provided further that the foregoing limitation shall not
apply to any increased costs or reductions in return on capital arising out of the retroactive
application of any law, rule, guideline or directive as aforesaid within such three month period.




          (e) The Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on
the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at least 15 days’ prior notice
(with a copy to the Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due
and payable 15 days from receipt of such notice.




     4.2 Limitation on Types of Loans. If on or prior to the first day of any Interest
Period for any Eurocurrency Rate Loan:




     (i) the Agent determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such Interest Period; or




     (ii) the Required Lenders determine (which determination shall be conclusive) and
notify the Agent that the Eurocurrency Rate will not adequately and fairly reflect the cost
to the Lenders of funding Eurocurrency Rate Loans for such Interest Period;


then the Agent shall give the Borrower prompt notice thereof specifying the relevant currencies,
amounts or periods, and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurocurrency Rate Loans in such currencies, Continue Eurocurrency
Rate Loans in such currencies, or to Convert Base Rate Loans into Eurocurrency Rate Loans in such
currencies and the Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurocurrency Rate Loans in such currencies, either prepay such Loans or Convert
such Loans into another Type of Loan or Loan in another currency in accordance with the terms of
this Agreement.




     4.3 Illegality. Notwithstanding any other provision of this Agreement, in the event
that it becomes unlawful for any Lender or its Applicable Lending Office to make, maintain, or fund
Eurocurrency Rate Loans in one or more currencies hereunder, then such Lender shall promptly notify
the Borrower thereof and such Lender’s obligation to make or Continue Eurocurrency Rate Loans in
such currencies and to Convert other Types of Loans into Eurocurrency Rate Loans in such currencies
shall be suspended until the circumstances giving rise to suspension no longer exist in which case
such Lender shall again make, maintain, and fund Eurocurrency Rate Loans in such currencies (in
which case the provisions of Section 4.4 shall be applicable).




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     4.4 Treatment of Affected Loans. If the obligation of any Lender to make a Eurocurrency Rate Loan or to Continue, or to
Convert Loans of any other Type into, Loans of a particular Type shall be suspended pursuant to
Section 4.1 or 4.3 hereof (Loans of such Type being herein called “Affected Loans” and such
Type being herein called the “Affected Type”), such Lender’s Affected Loans shall be automatically
Converted into Base Rate Loans in the Dollar Equivalent Amount of such Affected Loans on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 4.3 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives notice as provided below
that the circumstances specified in Section 4.1 or 4.3 hereof that gave rise to such
Conversion no longer exist:




     (i) to the extent that such Lender’s Affected Loans have been so Converted, all
payments and prepayments of principal that would otherwise be applied to such Lender’s
Affected Loans shall be applied instead to its Base Rate Loans; and




     (ii) all Loans that would otherwise be made or Continued by such Lender as Loans of the
Affected Type shall be made or Continued instead as Base Rate Loans, and all Loans of such
Lender that would otherwise be Converted into Loans of the Affected Type shall be Converted
instead into (or shall remain as) Base Rate Loans.


If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances
specified in Section 4.1 or 4.3 hereof that gave rise to the Conversion of such Lender’s
Affected Loans pursuant to this Section 4.4 no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically (i) in the
case of Affected Loans originally made in Dollars, Converted and (ii) in the case of Affected Loans
originally made in an Alternative Currency, converted into the Alternative Currency Equivalent
Amount, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Loans of
the Affected Type, to the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, currency denomination and Interest Periods) in accordance with their
respective Revolving Credit Commitments.




     4.5 Compensation. Upon the request of any Lender (with a copy to the Agent), the Borrower shall promptly pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of anticipated profits)
incurred by it as a result of:




     (i) any payment, prepayment, or Conversion of a Fixed Rate Loan for any reason (except
as set forth in Section 2.3(b)) including, without limitation, the acceleration of
the Loans pursuant to Section 9.1, on a date other than the last day of the Interest
Period for such Loan; or




     (ii) any failure by the Borrower for any reason (including, without limitation, the
failure of any condition precedent specified in Article V to be satisfied) to
borrow, Convert, Continue, or prepay a Fixed Rate Loan on the date for such borrowing,



50









 







Conversion, Continuation, or prepayment specified in the relevant notice of borrowing,
Conversion, Continuation, or prepayment under this Agreement;


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.




     4.6 Taxes. (a) Any and all payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under any other Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (x) in the case of each
Lender and the Agent, taxes imposed on its income, and franchise or similar taxes (including branch
profit taxes) imposed on it, by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Agent (as the case may be) is organized or any political
subdivision thereof, (y) in the case of each Lender and the Agent, taxes imposed by reason of any
present or former connection between such Lender or the Agent and the jurisdiction imposing such
taxes, other than solely as a result of this Agreement or any transaction contemplated hereby, and
(z) any United States withholding tax imposed on such payment, but not excluding any portion of
such tax that exceeds the United States withholding tax that would have been imposed on such a
payment to such Lender under the laws and treaties in effect when such Lender first becomes a party
to this Agreement (all such taxes, duties, levies, imposts, deductions, charges, withholdings, and
liabilities not excluded in (x), (y) and (z) being hereinafter referred to as “Taxes”). If
the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other Loan Document to any Lender or the Agent, (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 4.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable law, and (iv)
within thirty days after the date of such payment, the Borrower shall furnish to the Agent, at its
address referred to in Section 11.2, the original or a certified copy of a receipt
evidencing payment thereof or, if such receipt is not legally available, any other document
evidencing payment thereof that is reasonably satisfactory to such Lender.



          (b) In addition, the Borrower agrees to pay any and all present or future stamp or documentary
taxes and any other excise or property taxes or charges or similar levies imposed by the United
States or any political subdivision thereof which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”).



          (c) The Borrower agrees to indemnify each Lender and the Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 4.6) paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest, and



51









 







expenses) arising therefrom or with respect thereto. Indemnification shall be made within 15 days
of the date of demand therefor.



          (d) Each Lender that is entitled to an exemption from or reduction of withholding tax under
the law of the jurisdiction in which the Lender is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall, at the reasonable
request of the Borrower, deliver to the Borrower (with a copy to the Agent), at such time or times
prescribed by applicable law, 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.
Each Lender, on the date of its execution and delivery of this Agreement in the case of each such
Lender listed on the signature pages hereof and on the date on which it becomes a Lender in the
case of each such other Lender, represents and warrants to the Agent and the Borrower that as of
such date payments to its Applicable Lending Offices under this Agreement are exempt from
withholding tax under the law of the jurisdiction or jurisdictions in which such Lender or its
Applicable Lending Offices is or are located or any treaty to which any such jurisdiction is a
party. Upon the request of any Lender, the Borrower will make such factual representations as may
be reasonably required by such Lender in order to enable such Lender to make such representation
and warranty.



          (e) For any period with respect to which a Lender has failed to provide the Borrower and the
Agent with the appropriate form pursuant to Section 4.6(d) (unless such failure is due to a
change in treaty, law, or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to indemnification under
Section 4.6(a) or 4.6(c) with respect to Taxes; provided, however that
should a Lender, which is otherwise exempt from or subject to a reduced rate of withholding tax,
become subject to Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist such Lender to recover such
Taxes.



          (f) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 4.6 shall survive the
termination of the Revolving Credit Commitments and the payment in full of the Loans.



          (g) Refunds or Credits. If any Lender receives a refund or credit from a taxation
authority (such credit to include any increase in any foreign tax credit) in respect of any Taxes
or Other Taxes for which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts hereunder, it shall within 30 days from the date of such
receipt pay over the amount of such refund, credit or other reduction (including any interest paid
or credited by the relevant taxing authority or Governmental Authority with respect to such refund,
credit or other reduction) to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower with respect to the Taxes or Other Taxes giving rise to
such refund or credit), net of all reasonable out-of-pocket third party expenses of such Lender
related to claiming such refund or credit and without interest (other than interest paid by the
relevant taxation authority with respect to such refund or credit); provided,
however that the Borrower agrees to repay, upon the request of such Lender, the amount paid
over to the Borrower (plus penalties, interest or other charges) to such Lender in the event such
Lender is required to repay such refund or credit to such taxation authority.



52









 





          (h) Conduit Financing Arrangements. Notwithstanding anything to the contrary in this
Section 4.6, if the Internal Revenue Service determines that a Lender is participating in a
conduit financing arrangement as defined in Section 7701(1) of the Code and the regulations
thereunder (a “Conduit Financing Arrangement”), then (i) any Taxes that the Borrower is
required to withhold from payments to the Lender participating in the Conduit Financing Arrangement
shall be excluded from the additional amounts to be paid under Sections 4.6(a), (b)
or (c) and (ii) such Lender shall indemnify the Borrower in full for any and all Taxes for
which the Borrower is held liable under Section 1461 of the Code by virtue of such Conduit
Financing Arrangement.



     4.7 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 4.1, 4.2(b), 4.3 or 4.6 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section 4.7 shall affect or postpone any of the
obligations of the Borrower or the rights of any Lender pursuant to Section 4.1,
4.2(b), 4.3 or 4.6.



     4.8 Substitution of Lenders. Upon the receipt by the Borrower from any Lender (an “Affected Lender”) of a claim
under Section 4.1, 4.2(b), 4.3 or 4.6, the Borrower may: (a)
request one or more of the other Lenders to acquire and assume all or part of such Affected
Lender’s Loans and Revolving Credit Commitment; or (b) replace such Affected Lender by designating
another Lender or a financial institution that is willing to acquire such Loans and assume such
Revolving Credit Commitment; provided that (i) such replacement does not conflict with any
requirement of law, (ii) no Default or Event of Default shall have occurred and be continuing at
the time of such replacement, (iii) the Borrower shall repay (or the replacement bank or financial
institution shall purchase, at par) all Loans, accrued interest and other amounts owing to such
replaced Lender prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Section 4.5 if any Eurocurrency Rate Loan owing to such replaced
Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating
thereto, (v) the replacement bank or institution, if not already a Lender, shall otherwise qualify
as an Eligible Assignee, (vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 11.1 (provided that the Borrower or replacement
Lender shall be obligated to pay the registration and processing fee) and (vii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 4.1, 4.2(b),
4.3 or 4.6, as the case may be, to the extent such additional amounts were incurred
on or prior to the consummation of such replacement.



ARTICLE V




CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT




     5.1 Conditions of Closing. The obligation of the Lenders to make the initial Advance under the Revolving Credit
Facility or an initial Competitive Bid Loan, of the Swing Line



53









 







Lender to make any Swing Line Loan, and of the L/C Issuers to issue any Letter of Credit is
subject to the conditions precedent that:



          (a) the Agent shall have received on the Closing Date, in form and substance satisfactory to
the Agent, the following:




     (i) executed originals of each of this Agreement, any Notes requested prior to the
Closing Date and the other Loan Documents, together with all schedules and exhibits thereto;




     (ii) the favorable written opinion or opinions with respect to the Loan Documents and
the transactions contemplated thereby of (i) Candace S. Cummings, Vice President & General
Counsel of the Borrower and (ii) Davis Polk & Wardwell, special counsel to the Borrower, in
each case, dated the Closing Date, addressed to the Agent and the Lenders and satisfactory
to the Agent and to Shearman & Sterling LLP, special counsel to the Agent;




     (iii) resolutions of the board of directors or other appropriate governing body (or of
the appropriate committee thereof) of the Borrower certified by its secretary or assistant
secretary or any Authorized Representative as of the Closing Date, approving and adopting
the Loan Documents to be executed by the Borrower and authorizing the execution and delivery
thereof;




     (iv) specimen signatures of officers or other appropriate representatives executing the
Loan Documents on behalf of the Borrower, certified by the secretary or assistant secretary
or any Authorized Representative;




     (v) the Organizational Documents of the Borrower certified as of a recent date by the
Secretary of State or other appropriate Governmental Authority of the jurisdiction of its
organization or by an Authorized Representative;




     (vi) the by-laws or articles of association of the Borrower certified as of the Closing
Date as true and correct by its secretary or assistant secretary or any Authorized
Representative;




     (vii) to the extent applicable and available in the relevant jurisdiction, a
certificate issued as of a recent date by the Secretary of State or other appropriate
Governmental Authority of the jurisdiction of formation of the Borrower as to the due
existence and good standing of the Borrower;




     (viii) notice of appointment of the initial Authorized Representative;




     (ix) a certificate of an Authorized Representative dated the Closing Date demonstrating
compliance with the covenants contained in Sections 8.1, 8.2(i) and
8.3(e) as of the end of the fiscal quarter for which financial statements are
publicly available most recently ended prior to the Closing Date, substantially in the form
of Exhibit G hereto;



54









 






     (x) a certificate of the Borrower certifying that (A) as of the Closing Date, each of
the representations and warranties set forth in Article VI is true and correct, (B) after
giving effect to the Closing Date and all Loans to be made on the Closing Date, there will
be no Default or Event of Default under this Agreement, and (C) except as disclosed in any
reports or financial statements filed with the Securities and Exchange Commission on or
prior to September 21, 2007, as of the Closing Date there shall not have occurred a material
adverse change since December 30, 2006 in the business, financial position or results of
operations of the Borrower and its Subsidiaries, taken as a whole;




     (xi) evidence that the Credit Agreement dated as of September 25, 2003 among the
Borrower, the lenders parties thereto and Bank of America, as administrative agent, has been
or concurrently with the Closing Date is being terminated (and each of the Lenders that is a
party to such Credit Agreement hereby waives any requirement of prior notice for such
termination); and




     (xii) such other documents, instruments, certificates and opinions as the Agent or the
Required Lenders may reasonably request on or prior to the Closing Date in connection with
the consummation of the transactions contemplated hereby.



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



          (c) Unless waived by the Agent, the Borrower shall have paid all fees, charges and
disbursements of counsel to the Agent (directly to such counsel if requested by the Agent) to the
extent invoiced prior to or on 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 Agent).



     Without limiting the generality of the provisions of the last paragraph of Section
10.3, for purposes of determining compliance with the conditions specified in this Section
5.1, 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 Agent shall have
received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.



     5.2 Conditions of Revolving Loans, Letters of Credit, Swing Line Loans and Competitive Bid
Loans. The obligations of the Lenders to make any Revolving Loans or Competitive Bid Loans, the
Swing Line Lender to make Swing Line Loans, and the obligation of the L/C Issuers to issue Letters
of Credit hereunder on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:



          (a) (i) the Agent, in the case of Revolving Loans, or the Swing Line Lender, in the case of
Swing Line Loans, shall have received a Borrowing Notice if required by Article II



55









 







or (ii) an L/C Issuer, in the case of L/C Credit Extensions, shall have received a Letter of Credit
Application as required by Article II;



          (b) the representations and warranties set forth in Article VI shall be true and
correct in all material respects on and as of the date of such Advance, Swing Line Loan, L/C Credit
Extension or Competitive Bid Loan, with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the financial statements referred to
in Section 6.5 shall be deemed to be those financial statements most recently delivered to
the Agent and the Lenders pursuant to Section 7.1 from the date financial statements are
delivered to the Agent and the Lenders in accordance with such Section;



          (c) at the time of (and after giving effect to) each Advance, Swing Line Loan, L/C Credit
Extension or Competitive Bid Loan, no Default or Event of Default specified in Article IX
shall have occurred and be continuing; and



          (d) immediately after giving effect to:




     (i) a Loan or the issuance of a Letter of Credit, the aggregate principal balance of
all outstanding Revolving Loans (other than Competitive Bid Loans) for each Lender, plus
such Lender’s Applicable Commitment Percentage (determined without duplication) of all
Competitive Bid Outstandings, L/C Obligations and Swing Line Outstandings, shall not exceed
such Lender’s Revolving Credit Commitment;




     (ii) a Swing Line Loan, the Swing Line Outstandings shall not exceed $100,000,000;




     (iii) a L/C Credit Extension, the L/C Obligations shall not exceed the Letter of Credit
Sublimit;




     (iv) a Loan or the issuance of a Letter of Credit, the Outstandings shall not exceed
the then applicable Total Revolving Credit Commitment; and




     (v) a Loan or the issuance of a Letter of Credit in an Alternative Currency, the
Outstandings in Alternative Currencies shall not exceed the Total Alternative Currency
Sublimit.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants with respect to itself and to its Subsidiaries (which
representations and warranties shall survive the delivery of the documents mentioned herein and the
making of Loans), that:



     6.1 Corporate Existence and Power . The Borrower is a corporation duly incorporated, validly existing and subsisting under the
laws of Pennsylvania, and has all



56









 







corporate powers and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.



     6.2 Corporate and Governmental Authorization; No Contravention. The execution, delivery and performance by the Borrower of this Agreement and the Notes are
within its corporate powers, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower or any of its Subsidiaries or result in
the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.



     6.3 Material Subsidiaries. Each of the Borrower’s Material Subsidiaries is a corporation, limited liability company or
partnership, as the case may be, duly organized and validly existing under the laws of the
jurisdiction of its formation, and has the requisite powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted.



     6.4 Binding Effect. This Agreement constitutes a valid and binding agreement of the Borrower, and each Note,
when executed and delivered in accordance with this Agreement, will constitute a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its terms.



     6.5 Financial Information. (a) The consolidated balance sheet of the Borrower and its Subsidiaries as of December 30,
2006 and the related consolidated statements of income, retained earnings and cash flow for the
fiscal year then ended, reported on by PricewaterhouseCoopers LLP and set forth in the Borrower’s
Form 10-K for the fiscal year then ending, a copy of which has been delivered to each of the
Lenders, fairly present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Subsidiaries as of such date and their consolidated results of operations and cash
flows for such fiscal year.



          (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
June 30, 2007 and the related unaudited consolidated statements of income and cash flows for
the six months then ended, set forth in the Borrower’s quarterly report for the fiscal
quarter ended June 30, 2007 as filed with the Securities and Exchange Commission on Form
10-Q, a copy of which has been delivered to each of the Lenders, fairly present, in
conformity with GAAP applied on a Consistent Basis, the consolidated financial position of
the Borrower and its Subsidiaries as of such date and their consolidated results of
operations and cash flows for such six-month period (subject to normal year-end
adjustments).



     6.6 Litigation. There is no action, suit or proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could reasonably be expected to have
a Material Adverse Effect, or which in any manner draws into question the validity of this
Agreement or the Notes.



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     6.7 Compliance with ERISA. Each member of the ERISA Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section
412 of the Code in respect of any Plan or Multiemployer Plan, (ii) failed to make any contribution
or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA, in each case that could reasonably be expected to have a Material Adverse Effect.



     6.8 Environmental Matters. In the ordinary course of its business, the Borrower conducts periodic reviews, which it
considers prudent and reasonable in light of the nature of the business, of the effect of
Environmental Laws on the business, operations and properties of the Borrower and its Subsidiaries,
in the course of which it identifies and evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures required to achieve
or maintain compliance with environmental protection standards imposed by law or as a condition of
any license, permit or contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or change in the nature
of operations conducted thereat and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the Borrower has
reasonably concluded that Environmental Laws are unlikely to have a Material Adverse Effect.



     6.9 Taxes. The Borrower and its Significant Subsidiaries have filed all United States Federal income
tax returns and all other material tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment received by the Borrower or
any Significant Subsidiary, except for such amounts as may be contested in good faith by
appropriate proceedings, so long as collection thereof is effectively stayed. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes or
other governmental charges are, in the reasonable opinion of the Borrower, adequate.



     6.10 Margin Stock. The proceeds of the borrowings made hereunder will be used by the Borrower only for the
purposes expressly authorized herein. None of such proceeds will be used, directly or indirectly,
for the purpose of purchasing or carrying any Margin Stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry Margin Stock or for
any other purpose which might constitute any of the Loans under this Agreement a “purpose” credit
within the meaning of Regulation U or Regulation X (12 C.F.R. Part 221) of the Board;
provided, however, that the Borrower may purchase (i) its own stock and (ii) Margin
Stock in connection with an Acquisition so long as, following the application of the proceeds of
each borrowing hereunder, not more than twenty-five percent (25%) of the value of the assets of the
Borrower and its Subsidiaries on a consolidated basis will be Margin Stock. Neither the Borrower
nor any agent acting in its behalf has taken or will take any action which might cause this
Agreement or any of the documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of 1934, as



58









 







amended, or the Securities Act of 1933, as amended, or any state securities laws, in each case as
in effect on the date hereof.



     6.11 Investment Company. The Borrower is not an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.



     6.12 Full Disclosure. All information heretofore furnished by the Borrower to the Agent or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all
such information hereafter furnished by the Borrower to the Agent or any Lender will be, true and
accurate in every material respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Lenders in writing any and
all facts which materially and adversely affect or may affect (to the extent the Borrower can now
reasonably foresee), the business, properties, operations or condition, financial or otherwise, of
the Borrower and its Subsidiaries, considered as a whole, or the ability of the Borrower to perform
its obligations under this Agreement.



     6.13 No Consents, Etc. Neither the respective businesses or properties of the Borrower or any Subsidiary, nor any
relationship among the Borrower or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby, is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other Person on the part of
the Borrower as a condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or effected, would be
reasonably likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or effected, as the
case may be.



ARTICLE VII




AFFIRMATIVE COVENANTS




     Until the Facility Termination Date, unless the Required Lenders shall otherwise consent in writing:



     7.1 Financial Reports, Etc. The Borrower will deliver to each of the Lenders:



          (a) as soon as available and 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 Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income, retained earnings and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all prepared in accordance with GAAP applied on a Consistent Basis and
containing opinions of PricewaterhouseCoopers LLP, or other such independent certified public
accountants of nationally recognized standing, which are unqualified as to the scope of the audit
performed and as to the “going concern” status of the Borrower;



          (b) as soon as available and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower, a consolidated balance sheet of the



59









 







Borrower and its Subsidiaries as of the end of such quarter and the related consolidated statements
of income for such quarter and of income and cash flows for the portion of the Borrower’s fiscal
year ended at the end of such quarter, setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion of the Borrower’s previous fiscal year,
all certified (subject to normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency by an Authorized Representative;



          (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of an Authorized Representative (i) setting forth in
reasonable detail the calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 8.1, 8.2(i) and 8.3(e) on the date of
such financial statements and (ii) stating whether there exists on the date of such certificate any
Default or Event of Default and, if any Default or Event of Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to take with respect
thereto;



          (d) simultaneously with the delivery of each set of financial statements referred to in clause
(a) above, a statement of the firm of independent public accountants which reported on such
statements (i) advising whether anything has come to their attention to cause then to believe that
there existed on the date of such statements any Default or Event of Default and (ii) confirming
the calculations set forth in the officer’s certificate delivered simultaneously therewith pursuant
to clause (c) above, provided that such statement need not be provided if it is the general
practice and policy of such firm not to provide such statements;



          (e) forthwith upon the occurrence of any Default or Event of Default, a certificate of an
Authorized Representative setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;



          (f) promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of
all financial statements, reports and proxy statements so mailed;



          (g) promptly upon the filing thereof, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission;



          (h) if and when any member of the ERISA Group (i) gives or is required to give notice to the
PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice that it has incurred complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer, any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under



60









 







Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any
Plan under Section 404l(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement
which has resulted or could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of an Authorized Representative setting forth details as to such occurrence
and the action, if any, which the Borrower or applicable member of the ERISA Group is required or
proposes to take with respect thereto; provided that no such delivery referred to in
clauses (i) through (vii) above shall be required unless the event described in the applicable
clause could reasonably be expected to have a Material Adverse Effect; and



          (i) from time to time such additional information regarding the financial position or business
of the Borrower and its Subsidiaries as the Agent or any Lender may reasonably request.



     Documents required to be delivered pursuant to Section 7.1(a), (b), (f) or (g) may be
delivered electronically and, if so delivered, shall be deemed to have been delivered on the date
on which such documents are posted (or a link thereto is provided) on the Borrower’s website on the
Internet at www.vfc.com, at www.sec.gov/edgar/searchedgar/webusers.htm (the Central Index Key as of
the date of this Agreement for the Borrower being 0000103379), or on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Agent have access (whether a
commercial, third-party website or whether sponsored by the Agent), in each case so long as such
documents are generally available without charge to the Agent and each of the Lenders at such
locations; provided that: (x) the Borrower shall deliver paper copies of such documents to
the Agent or any Lender that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Agent or such Lender and (y) the Borrower
shall notify (which may be by facsimile or electronic mail) the Agent and each Lender of the
posting of any such documents and provide to the Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the certificates required by
Section 7.1(c) to the Agent. Except for such certificates required by Section
7.1(c), the 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 Agent will make available to the Lenders and the
L/C Issuer 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 (each, a
“Public Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates, or the respective securities of any of
the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. 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, (w) all Borrower Materials that are to be made available to Public Lenders shall



61









 







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 Agent, the L/C Issuer 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 11.14); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Agent shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.” Notwithstanding the foregoing, the Borrower shall be under no
obligation to mark any Borrower Materials “PUBLIC”.



     7.2 Payment of Taxes. The Borrower will pay, and will cause each Significant Subsidiary to pay, all their
respective tax liabilities, except where the same may be contested in good faith by appropriate
proceedings, and will maintain, and will cause each Significant Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves for the accrual of
the same.



     7.3 Maintenance of Properties; Insurance. The Borrower will keep, and will cause each Significant Subsidiary to keep, all material
property useful and necessary in its business in good working order and condition, ordinary wear
and tear excepted; will maintain, and will cause each Significant Subsidiary to maintain (either in
the name of the Borrower or in such Significant Subsidiary’s own name) with financially sound and
reputable insurance companies, insurance on all their property in at least such amounts and against
at least such risks as are usually insured against in the same general area by companies of
established repute engaged in the same or a similar business; provided that the Borrower shall have
the right to self-insure or use a captive insurer in order to meet such insurance requirements so
long as the Borrower or such captive insurer provides the Lenders with reasonable proof of
financial responsibility. The Borrower will furnish to the Lenders, upon written request from the
Agent, full information as to the insurance carried.



     7.4 Compliance with Laws. The Borrower will comply, and cause each Subsidiary to comply, in all material respects
with all applicable laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (i) the necessity of compliance therewith is contested in good
faith by appropriate proceedings or (ii) appropriate steps are being taken to correct any failure
to comply therewith and such failure does not have a Material Adverse Effect.



     7.5 Books and Records. The Borrower will, and will cause each Significant Subsidiary to, (a) maintain proper books
of record and account, in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the assets and business
of the Borrower or such Significant Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Borrower or such Significant Subsidiary, as the
case may be.



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ARTICLE VIII




NEGATIVE COVENANTS




     Until the Facility Termination Date, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, nor will it permit any Subsidiary to:



     8.1 Consolidated Indebtedness to Consolidated Capitalization. Permit the ratio of Consolidated Indebtedness to Consolidated Capitalization to be greater
than 0.60 to 1.00 at any time.



     8.2 Liens. Incur, create or permit to exist any Lien, charge or other encumbrance of any nature
whatsoever with respect to any property or assets now owned or hereafter acquired by the Borrower
or any Subsidiary, other than



          (a) Liens existing on the date of this Agreement securing Indebtedness outstanding on the date
of this Agreement in an aggregate principal amount not exceeding $50,000,000;



          (b) any Lien existing on any asset of any corporation at the time such corporation becomes a
Subsidiary and not created in contemplation of such event;



          (c) any Lien on any asset of any corporation existing at the time such corporation is merged
or consolidated with or into the Borrower or a Subsidiary and not created in contemplation of such
event;



          (d) any Lien existing on any asset prior to the acquisition thereof by the Borrower or a
Subsidiary and not created in contemplation of such acquisition;



          (e) any Lien on any asset securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such asset, provided that such Lien
attaches to such asset concurrently with or within 90 days after the acquisition thereof;



          (f) any Lien arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by clauses (a) through (e) above provided that
such Indebtedness is not increased and is not secured by any additional assets;



          (g) Liens arising in the ordinary course of business which (i) do not secure Indebtedness,
(ii) do not secure any obligation in an amount exceeding $50,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially impair the use thereof in
the operations of its business;



          (h) Liens on assets of a Subsidiary securing Indebtedness owed to the Borrower or a Wholly
Owned Subsidiary; and



          (i) Liens not otherwise permitted by the foregoing clauses securing Indebtedness in an
aggregate principal amount at any time not to exceed 15% of Consolidated Net Worth;
provided that the sum of the principal amount of Indebtedness permitted to be



63









 







secured by this clause (i) plus the principal amount of Indebtedness incurred in accordance with
Section 8.3(e) at any time shall not exceed 20% of Consolidated Net Worth.



     8.3 Indebtedness of Subsidiaries. Incur, create, assume or permit to exist any Indebtedness of any Subsidiary of the
Borrower, howsoever evidenced, except:



          (a) Indebtedness of any corporation outstanding at the time such corporation becomes a
Subsidiary and not created in contemplation of such event;



          (b) Indebtedness of any corporation outstanding at the time such corporation is merged or
consolidated with or into a Subsidiary and not created in contemplation of such event;



          (c) Indebtedness secured by a Lien permitted by Section 8.2 hereof;



          (d) Indebtedness owing to the Borrower or a Wholly Owned Subsidiary; and



          (e) Indebtedness not otherwise permitted by the foregoing clauses of this Section in an
aggregate outstanding principal amount for all Subsidiaries at no time exceeding 15% of
Consolidated Net Worth; provided that the sum of the principal amount of Indebtedness
incurred in accordance with this clause (e) plus the principal amount of Indebtedness permitted to
be secured in accordance with Section 8.2(i) at any time shall not exceed 20% of Consolidated Net
Worth.



     The foregoing is subject to the further limitations that (i) for purposes of this Section, any
preferred stock of a Subsidiary held by a Person other than the Borrower or a Wholly Owned
Subsidiary shall be included, at the higher of its voluntary or involuntary liquidation value, in
the Indebtedness of such Subsidiary and (ii) Indebtedness permitted by this Section does not
include a refunding, renewal or extension of such Indebtedness so that any such new Indebtedness
must fall independently within one of the above exceptions.



     8.4 Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge with or into any other Person; provided that
the Borrower may merge with another Person if (A) the Borrower is the corporation surviving such
merger and is not a subsidiary of another person and (B) immediately after giving effect to such
merger, no Default or Event of Default shall have occurred and be continuing; or (ii) sell, lease
or otherwise transfer, directly or indirectly, all or substantially all of its assets to any other
Person, except for sales, leases and other transfers to a Wholly Owned Subsidiary; provided that
nothing in this Section 8.4 shall be construed to prohibit or limit the ability of the
Borrower or any Subsidiary to dispose of Margin Stock for fair market value.



     8.5 Change in Control. Cause, suffer or permit to exist or occur any Change of Control.



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ARTICLE IX




EVENTS OF DEFAULT AND ACCELERATION




     9.1 Events of Default. If any one or more of the following events (herein called “Events of Default”)
shall occur for any reason whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of any Governmental
Authority), that is to say:



          (a) if default shall be made in the due and punctual payment of the principal of any Loan,
when and as the same shall be due and payable whether pursuant to any provision of Article
II or Article III, at maturity, by acceleration or otherwise; or



          (b) if default shall be made in the due and punctual payment of any amount of interest on any
Loan or other Obligation or of any fees or other amounts payable to any of the Lenders or the Agent
within five days of the date on which the same shall be due and payable; or



          (c) if default shall be made in the performance or observance of any covenant set forth in
Article VIII; or



          (d) if a default shall be made in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in this Agreement or the Notes (other than as described
in clauses (a), (b) or (c) above) and such default shall continue for 30 or more days after the
earlier of (i) receipt of notice of such default by an Authorized Representative from the Agent and
(ii) the date on which an officer or Authorized Representative becomes aware of such default, or if
without the written consent of the Lenders, this Agreement or any Note shall be disaffirmed or
shall terminate, be terminable or be terminated or become void or unenforceable for any reason
whatsoever (other than as expressly provided for hereunder or thereunder); or



          (e) if there shall occur (i) a default, which is not waived or cured within any applicable
grace periods, in the payment of any principal, interest, premium or other amount with respect to
any Indebtedness (other than the Loans and other Obligations and other than Indebtedness owed to
the Borrower or any Subsidiary) of the Borrower or any Subsidiary in an amount not less than
$100,000,000 in the aggregate outstanding, or (ii) any event of default as specified in any
agreement or instrument under or pursuant to which any such Indebtedness in excess of $100,000,000
may have been issued, created, assumed, guaranteed or secured by the Borrower or any Subsidiary,
and such default or event of default shall continue for more than the period of grace, if any,
therein specified, and such default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more holders) to accelerate the
maturity thereof; or



          (f) if any representation, warranty or other statement of fact contained in any Loan Document
or in any writing, certificate, report or statement at any time furnished to the Agent or any
Lender by or on behalf of the Borrower or any Subsidiary pursuant to or in



65









 







connection with any Loan Document, or otherwise, shall be false or misleading in any material
respect when given; or



          (g) if the Borrower or any Significant Subsidiary shall be unable to pay its debts generally
as they become due; file a petition to take advantage of any insolvency statute; make an assignment
for the benefit of its creditors; commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute, domestic or foreign; or



          (h) if a court of competent jurisdiction shall enter an order, judgment or decree appointing a
custodian, receiver, trustee, liquidator or conservator of the Borrower or any Significant
Subsidiary or of the whole or any substantial part of its properties and such order, judgment or
decree continues unstayed and in effect for a period of sixty (60) days, or approve a petition
filed against the Borrower or any Significant Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof or any other jurisdiction, domestic or
foreign, which petition is not dismissed within sixty (60) days; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent jurisdiction shall assume custody
or control of the Borrower or any Significant Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60) days; or if there is commenced
against the Borrower or any Significant Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state thereof or any other
jurisdiction, domestic or foreign which proceeding or petition remains undismissed for a period of
sixty (60) days; or if the Borrower or any Significant Subsidiary takes any action to indicate its
consent to or approval of any such proceeding or petition; or



          (i) if (i) any judgment or order where the amount not covered by insurance (or the amount as
to which the insurer denies liability) is in excess of $100,000,000 is rendered against the
Borrower or any Subsidiary, or (ii) there is any attachment, injunction or execution against any of
the Borrower’s or Subsidiaries’ properties for any amount in excess of $100,000,000; and such
judgment, attachment, injunction or execution remains unpaid, unstayed, undischarged, unbonded or
undismissed for a period of thirty (30) days; or



          (j) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating
in excess of $100,000,000 which it shall have become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Material Plan shall be filed under Title IV or ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more Multiemployer



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Plans which could reasonably be expected to cause one or more members of the ERISA Group to incur a
payment obligation in excess of $100,000,000;


then, and in any such event and at any time thereafter, if such Event of Default or any other Event
of Default shall have not been waived,





     (A) either or both of the following actions may be taken: (i) the Agent may,
and at the direction of the Required Lenders shall, declare any obligation of the
Lenders and the Swing Line Lender to make further Loans terminated, whereupon the
obligation of each Lender and the Swing Line Lender to make further Loans hereunder
shall terminate immediately, and (ii) the Agent shall at the direction of the
Required Lenders, at their option, declare by notice to the Borrower any or all of
the Obligations to be immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the Borrower to the Agent and
the Lenders, shall forthwith become immediately due and payable without presentment,
demand, protest, notice or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided, however that
notwithstanding the above, if there shall occur an Event of Default under clause (g)
or (h) above, then the obligation of the Lenders and the Swing Line Lender to make
Loans hereunder shall automatically terminate and any and all of the Obligations
shall be immediately due and payable without the necessity of any action by the
Agent or the Required Lenders or notice to the Agent or the Lenders; and




     (B) the Agent may, and at the direction of the Required Lenders shall, require
that the Borrower Cash Collateralize all L/C Obligations (in an amount equal to the
then L/C Obligations) plus the Letter of Credit fees payable with respect to each
then outstanding Letter of Credit (calculated at the Applicable Margin for Letters
of Credit then in effect for the period from the date of such Cash Collateralization
until the expiry date of each such Letter of Credit; and




     (C) the Agent and each of the Lenders shall have all of the rights and remedies
available under the Loan Documents or under any applicable law.



     9.2 Agent to Act. In case any one or more Events of Default shall occur and not have been waived, the Agent
may, and at the direction of the Required Lenders shall, proceed to protect and enforce their
rights or remedies either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in any other Loan
Document, or to enforce the payment of the Obligations or any other legal or equitable right or
remedy.



     9.3 Cumulative Rights. No right or remedy herein conferred upon the Lenders or the Agent is intended to be
exclusive of any other rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other such right or
remedy contained herein and therein or now or hereafter existing at law or in equity or by statute,
or otherwise.




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     9.4 No Waiver. No course of dealing between the Borrower, on the one hand, and any
Lender, the Swing Line Lender or the Agent, on the other hand, or any failure or delay on the part
of any Lender, the Swing Line Lender or the Agent in exercising any rights or remedies under any
Loan Document or otherwise available to it shall operate as a waiver of any rights or remedies and
no single or partial exercise of any rights or remedies shall operate as a waiver or preclude the
exercise of any other rights or remedies hereunder or of the same right or remedy on a future
occasion.



     9.5 Allocation of Proceeds. If an Event of Default has occurred and not been waived,
and the maturity of the Loans has been accelerated pursuant to Article IX hereof, all
payments received by the Agent hereunder, in respect of any principal of or interest on the
Obligations or any other amounts payable by the Borrower hereunder, shall be applied by the Agent
in the following order:



          (a) amounts due to the Lenders pursuant to Sections 3.6(a) and 11.5;




          (b) amounts due to the Agent pursuant to Section 3.6(b);




          (c) payments of interest on Revolving Loans to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of L/C Borrowings and Swing Line Outstandings being
included in such calculation and paid to the applicable L/C Issuer and the Swing Line Lender,
respectively) and payments of interest on Competitive Bid Loans to be applied to the applicable
Competitive Bid Lender;




          (d) payments of principal of Revolving Loans, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of L/C Borrowings and Swing Line Outstandings being
included in such calculation and paid to the applicable L/C Issuer and the Swing Line Lender,
respectively) and payments of principal of Competitive Bid Loans to be applied to the applicable
Competitive Bid Lender;




          (e) amounts due to the Agent and the Lenders pursuant to Section 11.9;




          (f) payments of all other amounts due under any of the Loan Documents, if any, to be applied
for the ratable benefit of the Lenders;




          (g) any surplus remaining after application as provided for herein, to the Borrower or
otherwise as may be required by applicable law.




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ARTICLE X




THE AGENT




     10.1 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 Agent hereunder and under the
other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise
such powers as are delegated to the 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 Agent, the Lenders and the L/C Issuer, and the Borrower shall have no rights
as a third party beneficiary of any of such provisions.



     10.2 Rights as a Lender. The Person serving as the 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as the 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 the Borrower or any Subsidiary or other Affiliate thereof as if such
Person were not the Agent hereunder and without any duty to account therefor to the Lenders.



     10.3 Exculpatory Provisions. The 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 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 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 Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the 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 Agent or any of its Affiliates in any capacity.




     The 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 Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.01 and 11.6) or (ii) in the absence of its
own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any



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Default unless and until notice describing such Default is given to the Agent by the Borrower,
a Lender or the L/C Issuer.



     The 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 V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agent.



     10.4 Reliance by Agent. The 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 been signed, sent or otherwise
authenticated by the proper Person. The 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 Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the 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 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.



     10.5 Delegation of Duties. The 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 Agent. The 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 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 Agent.



     10.6 Resignation of Agent. The 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, with the consent of 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 Agent gives
notice of its resignation, then the retiring Agent may on behalf of the Lenders and the L/C Issuer,
and with the consent of the Borrower, appoint a successor Agent meeting the qualifications set
forth above; provided that if the Agent shall notify the Borrower and the



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Lenders
that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring 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 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 Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the
retiring 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 Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor. After the retiring
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 11.5 shall continue in effect for the benefit of such retiring 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 Agent was acting as Agent.



     Any resignation by Bank of America as 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 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 reasonably 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.



     10.7 Non-Reliance on Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the 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
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.



     10.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Arrangers, Syndication Agent or Documentation Agent 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 Agent, a Lender or the L/C Issuer
hereunder.



     10.9 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 Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and



71









 







payable as herein expressed or by declaration or otherwise and irrespective of whether the
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 Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer
and the Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Agent under Sections 2.8(i) and (j), 3.6 and
11.5) 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 Agent and, in the event that the Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 3.6 and 11.5.




     Nothing contained herein shall be deemed to authorize the 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 Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such
proceeding.



ARTICLE XI




MISCELLANEOUS




     11.1 Assignments and Participations.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender, and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible 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 (e) of this Section and, to the extent expressly contemplated hereby, the



72









 






Indemnified Parties) any legal or equitable right, remedy or claim under or by reason of this
Agreement.




          (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Revolving Credit
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 (i) except in
the case of an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit
Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this Section) with
respect to a Lender, the aggregate amount of the Revolving Credit Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is delivered to the 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 or an integral multiple of $5,000,000 in excess thereof, unless
each of the Agent and, so long as no Event of Default under Section 9.1(a), (b),
(g) or (h) has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) 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 (including its participation interests in Swing Line
Loans), L/C Borrowings and the Revolving Credit Commitment assigned, but this clause (ii) shall not
apply to Swing Line Loans in the event of any assignment by the Swing Line Lender; (iii) each such
assignment may, but need not, include the rights of the assignor in respect of Competitive Bid
Outstandings except in the event that a Lender assigns all of its Revolving Credit Commitment such
assignment shall include all of its Competitive Bid Loans; (iv) any assignment of a Revolving
Credit Commitment must be approved (which approval shall not be unreasonably withheld or delayed)
by the Agent, each L/C Issuer and the Swing Line Lender unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (v) the parties to each assignment shall execute and deliver to the Agent
an Assignment and Assumption, together with a processing and recordation fee of $3,500. Subject to
acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and
after the effective date specified in each Assignment and Assumption, the Eligible 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 4.1, 4.4, 4.5, 11.5 and 11.9 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. Notwithstanding the foregoing, (x) the Agent shall not be obligated to consent to an
assignment hereunder until it is satisfied it has complied with all necessary “know your customer”
or other similar checks under all applicable laws and



73









 






regulations in relation to the assignment to such assignee Lender and (y) an assignment will
only be effective after performance by the Agent of all “know your customer” or other checks
relating to any person that it is required to carry out in relation to such assignment to an
assignee Lender, the completion of which the Agent shall promptly notify to the assigning Lender
and the assignee Lender.




          (c) The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at
the Agent’s Applicable Lending 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 Revolving Credit
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, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




          (d) Any Lender may at any time, without the consent of, or (except as set forth below in this
subsection (d)) notice to, the Borrower or the 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 Revolving Credit 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 Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Each Lender selling a participation shall notify the Borrower of the identity of
the participant and the amount of the participation, provided that the failure of any
Lender to give such notice shall not affect the validity of such sale or the rights of the
participant hereunder. 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 11.6 that directly affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 4.1 and 4.5 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
11.3(a) as though it were a Lender, provided such Participant agrees to be subject to
Section 11.3(b) as though it were a Lender.




          (e) A Participant shall not be entitled to receive any greater payment under Sections
4.1 or 4.5 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. No Participant shall be entitled to
the benefits of Section 4.6 unless the Borrower is notified of the participation sold to
such Participant and



74









 






such Participant agrees, for the benefit of the Borrower, to provide such forms, certificates or
other evidence, if any, with respect to withholding tax matters as required under Section
4.6.




          (f) 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) As used herein, the following terms have the following meanings:




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Agent (which
approval shall be subject to the last sentence of Section 11.1(b) and shall not be
unreasonably withheld) and (ii) unless an Event of Default under Section 9.1(a),
(b), (g) or (h) has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates
or Subsidiaries.



     “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 business.



     “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.



     11.2 Notices; Effectiveness; Electronic Communication.



          (a) General. 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:




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	 	(A)	 	if to the Borrower:
	 
	 	 	 	V.F. Corporation

105 Corporate Center Boulevard

Greensboro, North Carolina 27408

Attn: Frank C. Pickard, III, Vice President-Treasurer

Telephone: (336) 424-6000

Telefacsimile: (336) 424-7630
	 
	 	(B)	 	if to the Agent:
	 
	 	 	 	Bank of America, N.A.

101 North Tryon Street, 15th Floor

NC1-001-15-14

Charlotte, North Carolina 28255

Attention: Cindy K. Fisher

Telephone: (704) 386-5452

Telefacsimile: (704) 409-0180

	 
	 	 	 	with a copy to:
	 
	 	 	 	Bank of America, N.A.
	 
	 	 	 	Corporate Debt Products

335 Madison Avenue

New York, NY 10017

Attention: Thomas J. Kane

Telephone: (212) 503-7980

Telefacsimile: (704) 409-0120
	 
	 	(C)	 	if to the Lenders:






At the addresses set forth in an administrative questionnaire delivered to the
Agent.


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, where the proper transmission of such notice is either acknowledged by the
recipient or electronically confirmed by the transmitting device (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 Agent, provided
that the foregoing shall not apply to notices to any Lender or



76









 






the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable,
has notified the Agent that it is incapable of receiving notices under such Article by electronic
communication. The 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 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 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 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 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 Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees
to notify the Agent from time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one



77









 






individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of the Platform in order
to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state securities Laws, to make
reference to Borrower Materials that are not made available through the “Public Side
Information” portion of the Platform and that may contain material non-public information with
respect to the Borrower or its securities for purposes of United States Federal or state securities
laws.




          (e) Reliance by Agent, L/C Issuer and Lenders. The Agent, the L/C Issuer and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing 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 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. All
telephonic notices to and other telephonic communications with the Agent may be recorded by the
Agent, and each of the parties hereto hereby consents to such recording.




     11.3 Right of Set-off; Adjustments. Upon the occurrence and during the continuance of
any Event of Default, each Lender (and each of its affiliates) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender (or any of its affiliates) 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 and the Notes held by such Lender, irrespective of whether such
Lender shall have made any demand under this Agreement or such Notes and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender; provided, however that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Lender
under this Section 11.3 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.



          (a) Except to the extent that this Agreement expressly provides for payments to be allocated
to a particular Lender or Lenders, if any Lender (a “benefited Lender”) shall at any time
receive any payment of all or part of the Loans (other than Competitive Bid Loans) owing to it, or
interest thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other Lender’s Loans (other
than Competitive Bid Loans) owing to it, or interest thereon, such benefited Lender shall purchase
for cash from the other Lenders a participating interest in such portion of each such other
Lender’s Loans (other than Competitive Bid Loans) owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such collateral or proceeds
ratably with each of the Lenders; provided, however that if all or any portion of
such



78









 






excess payment or benefits is thereafter recovered from such benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery,
but without interest. The Borrower agrees that any Lender so purchasing a participation from a
Lender pursuant to this Section 11.3 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the amount of such
participation.




     11.4 Survival. All covenants, agreements, representations and warranties made herein
shall survive the making by the Lenders of the Loans and the execution and delivery to the Lenders
of this Agreement and the Notes and shall continue in full force and effect so long as any of
Obligations remain outstanding or any Lender has any Revolving Credit Commitment hereunder or the
Borrower has continuing obligations hereunder unless otherwise provided herein.



     11.5 Expenses. The Borrower agrees to pay on demand all reasonable out-of-pocket costs
and expenses of the Agent in connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Agreement, the other Loan Documents, and the
other documents to be delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under the Loan Documents. If an Event of Default occurs, the
Borrower further agrees to pay on demand all reasonable out-of-pocket costs and expenses of the
Agent and the Lenders, if any (including, without limitation, reasonable attorneys’ fees and
expenses), in connection with the enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Loan Documents and the other documents to be delivered hereunder.



     11.6 Amendments and Waivers. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and either the Required Lenders or (as to Loan Documents other than the
Credit Agreement) the Agent at the direction of and on behalf of the Required Lenders;
provided that no such amendment or waiver shall, unless signed by all the Lenders affected
thereby, (i) increase the Revolving Credit Commitments of the Lenders or the Total Revolving Credit
Commitment (except as provided in Section 2.7), (ii) reduce the principal of or rate or
amount of interest on any Revolving Loan or any fees or other amounts payable hereunder, (iii)
postpone any date fixed for the payment of any scheduled installment of principal of or interest on
any Loan or any fees or other amounts payable hereunder (except as provided in Section 2.9) or for
termination of any Revolving Credit Commitment, (iv) change the percentage of the Revolving Credit
Commitment or of the unpaid principal amount of the Loans, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action under this Section 11.6 or any
other provision of this Agreement, (v) change Section 9.5, Section 2.1(e) or
Section 11.3 in a manner that would alter the pro rata sharing of payments or the pro rata
reduction of the Revolving Credit Commitments required thereby or (v) amend this Section
11.6; and, provided further, that (x) no amendment, waiver or consent shall,
unless in writing and signed by each L/C Issuer in addition to the Lenders required above, affect
the rights or duties of any L/C Issuer under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (y) 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



79









 




or duties of the Swing Line Lender under this Agreement; and (z) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the Lenders required above,
affect the rights or duties of the Agent under this Agreement or any other Loan Document.
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 Revolving Credit
Commitment of such Lender may not be increased or extended without the consent of such Lender.




     No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances, except as otherwise expressly provided
herein. No delay or omission on any Lender’s or the Agent’s part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or of any Default or
Event of Default.



     11.7 Counterparts. This Agreement and any Loan Document may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an original, and it
shall not be necessary in making proof of this Agreement or any Loan Document to produce or account
for more than one such fully-executed counterpart. Delivery of an executed signature page of this
Agreement or any Loan Document by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.



     11.8 Termination. The termination of this Agreement shall not affect any rights of the
Borrower, the Lenders or the Agent or any obligation of the Borrower, the Lenders or the Agent,
arising prior to the effective date of such termination, and the provisions hereof shall continue
to be fully operative until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated and the Obligations
arising prior to or after such termination have been irrevocably paid in full. The rights granted
to the Agent for the benefit of the Lenders under the Loan Documents shall continue in full force
and effect, notwithstanding the termination of this Agreement, until all of the Obligations have
been paid in full after the termination hereof (other than Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable, which shall continue) or
the Borrower has furnished the Lenders and the Agent with an indemnification satisfactory to the
Agent and each Lender with respect thereto. Notwithstanding the foregoing, if after receipt of any
payment of all or any part of the Obligations, any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force, and the Borrower shall be liable to, and shall indemnify
and hold the Agent or such Lender harmless for, the amount of such payment surrendered until the
Agent or such Lender shall have been finally and irrevocably paid in full. The provisions of the
foregoing sentence shall be and remain effective notwithstanding any contrary action which may have
been taken by the Agent or the Lenders in reliance upon such payment, and any such contrary action
so taken shall be without prejudice to the Agent or the Lenders’ rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final and irrevocable.



80









 





     11.9 Indemnification; Limitation of Liability.



          (a) The Borrower, to the maximum extent permitted by applicable law, agrees to indemnify and
hold harmless the Agent and each Lender and each of their affiliates and their respective officers,
directors, employees, agents, and advisors (each, an “Indemnified Party”) from and against
any and all claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys’ fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation, or proceeding or preparation
of defense in connection therewith) the Loan Documents, any of the transactions contemplated herein
or the actual or proposed use of the proceeds of the Loans (collectively, “Indemnified
Liabilities”), except to the extent such claim, damage, loss, liability, cost, or expense is
found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party’s gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 11.9
applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower or any of its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to it, any of its Subsidiaries, any guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions contemplated herein,
except to the extent that such liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified Party’s gross negligence or
willful misconduct. The Borrower agrees not to assert any claim against the Agent, any Lender, any
of their affiliates, or any of their respective directors, officers, employees, attorneys, agents,
and advisers, on any theory of liability, for special, indirect, consequential, or punitive damages
arising out of or otherwise relating to the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans.




          (b) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 11.9 shall survive the
payment in full of the Loans and all other amounts payable under this Agreement.




     11.10 Severability. If any provision of this Agreement or the other Loan Documents
shall be determined to be illegal or invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties, if any, as to whom such provision is
neither illegal nor invalid, and in any event all other provisions hereof shall remain effective
and binding on the parties hereto.



     11.11 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Agent or the Lenders in any other Loan Document executed on or after the
date of this Agreement shall not be deemed a conflict with this Agreement. Each Loan



81









 




Document was drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance with the fair
meaning thereof.




     11.12 Agreement Controls. In the event that any term of any of the Loan Documents
other than this Agreement conflicts with any express term of this Agreement, the terms and
provisions of this Agreement shall control to the extent of such conflict.



     11.13 Governing Law; Waiver of Jury Trial.



          (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.




          (b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, STATE OF NEW YORK, UNITED
STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE NON EXCLUSIVE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.




          (c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF
THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF
NEW YORK.




          (d) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR RELATED
TO ANY LOAN DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE AGENT AND THE LENDERS HEREBY
AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE



82









 






EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION, SUIT OR PROCEEDING.




          (e) THE BORROWER HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION IT MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE
TERMS HEREOF IS AN INCONVENIENT FORUM.




     11.14 Confidentiality. Each of the Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel and other advisors (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 (including any
self-regulatory authority), (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 or any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Documents or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (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 Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section, “Information” means
all information received from the Borrower or any of its Subsidiaries (each, a “Loan
Party”) relating to any Loan Party or any of their respective businesses, other than any such
information that is available to the Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party. 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.



     11.15 “Know Your Customer” Checks; PATRIOT Act Notice. (a) If:




     (i) the introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;




     (ii) any change in the status of a Loan Party after the date of this Agreement; or




     (iii) a proposed assignment or transfer by a Lender of any of its rights and/or
obligations under this Agreement to a party that is not a Lender prior to such assignment or
transfer,


obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new
Lender) to comply with “know your customer” or similar identification procedures in


83









 






circumstances where the necessary information is not already available to it, each Loan Party shall
promptly upon the request of the Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii)
above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case
of the event described in paragraph (iii) above, any prospective new Lender to carry out and be
satisfied it has complied with all necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the Loan Documents.




          (b) Each Lender shall promptly upon the request of the Agent supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the Agent (for itself) in order
for the Agent to carry out and be satisfied it has complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant to the transactions
contemplated in the Loan Documents.




          (c) Each Lender that is subject to the Act (as hereinafter defined) and the 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 Agent, as applicable, to identify the Borrower in accordance
with the Act.




[Signatures on following pages]





84












 





     IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and
delivered by their duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	V.F. CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	Mackey J. McDonald 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	Frank C. Pickard III 	 
	 	 	Title:  	Vice President — Treasurer 	 
	 
	 	BANK OF AMERICA, N.A.,

as Agent for the Lenders, Swing Line Lender, an L/C

Issuer and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A.,


as Syndication Agent and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agent and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



3









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.


as Co-Documentation Agent and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



4









 






	 	 	 	 	 



	 	 	 	 	 
	 	ING BANK N.V., DUBLIN BRANCH


as Senior Managing Agent and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



5









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,


as Senior Managing Agent and as Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



6









 






	 	 	 	 	 



	 	 	 	 	 
	 	ABN AMRO BANK N.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



7









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANCO SANTANDER S.A., NEW YORK BRANCH

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



8









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



9









 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



10









 






	 	 	 	 	 



	 	 	 	 	 
	 	WILLIAM STREET COMMITMENT CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



11









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



12









 






	 	 	 	 	 



	 	 	 	 	 
	 	UMB BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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SCHEDULE 1.01




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its functions);
or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall
calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender,
in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to
the percentage participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum. The Agent will, at the request of the Borrower or any Lender,
deliver to the Borrower or such Lender as the case may be, a statement setting forth the
calculation of any Mandatory Cost.






	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the Agent. This percentage
will be certified by such Lender in its notice to the Agent to be its reasonable determination
of the cost (expressed as a percentage of such Lender’s participation in all Loans made from
such Lending Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of Loans made from that Lending Office.






	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 	 	 	 	 
	 

	 	AB+C(BD)+E x 0.01
 

	 	per cent per annum
	 	 
	 

	 	100 - (A+C)	 	 	 	 







	 	(b)	 	in relation to any Loan in any currency other than Sterling:





	 	 	 	 	 	 	 	 	 
	 

	 	E x 0.01
 

	 	per cent per annum
	 	 
	 

	 	 	300	 	 	 	 	 






Where:





	 	“A” 	 	 is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as 




 









 






	 	 	 	an interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.






	 	“B” 	 	 is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to the first
sentence of Section 3.3 and, in the case of interest (other than on overdue amounts)
charged at the Default Rate, without counting any increase in interest rate effected by
the charging of the Default Rate) payable for the relevant Interest Period of such
Loan.
	 
	 	“C” 	 	 is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	“D” 	 	 is the percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.
	 
	 	“E” 	 	 is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Agent as being the average of the most recent rates of charge
supplied by the Lenders to the Agent pursuant to paragraph 7 below and
expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given
to them from time to time under or pursuant to the Bank of England Act 1998 or (as may
be appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time to time
in respect of the payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.






	7.	 	If requested by the Agent or the Borrower, each Lender with a Lending Office in the United
Kingdom or a Participating Member State shall, as soon as practicable after publication by the
Financial Services Authority, supply to the Agent and the Borrower, 




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	 	 	the rate of charge payable
by such Lender to the Financial Services Authority pursuant to the Fees Rules in respect of
the relevant financial year of the Financial Services Authority (calculated for this purpose
by such Lender as being the average of the Fee Tariffs applicable to such Lender for that
financial year) and expressed in pounds per £1,000,000 of the Tariff Base of such Lender.






	8.	 	Each Lender shall supply any information required by the Agent for the purpose of calculating
its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the
following information in writing on or prior to the date on which it becomes a Lender:






	 	(a)	 	the jurisdiction of the Lending Office out of which it is making available its
participation in the relevant Loan; and
	 
	 	(b)	 	any other information that the Agent may reasonably require for such purpose.





        Each Lender shall promptly notify the Agent in writing of any change to the information
provided by it pursuant to this paragraph.




	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Lender for the purpose of E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Agent to the contrary, each Lender’s obligations
in relation to cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with a Lending Office in the same jurisdiction as
its Lending Office.






	10.	 	The Agent shall have no liability to any Person if such determination results in an
Additional Cost Rate which over- or under-compensates any Lender and shall be entitled to
assume that the information provided by any Lender pursuant to paragraphs 3, 7
and 8 above is true and correct in all respects.






	11.	 	The Agent shall distribute the additional amounts received as a result of the Mandatory Cost
to the Lenders on the basis of the Additional Cost Rate for each Lender based on the
information provided by each Lender pursuant to paragraphs 3, 7 and 8
above.






	12.	 	Any determination by the Agent pursuant to this Schedule in relation to a formula, the
Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.






	13.	 	The Agent may from time to time, after consultation with the Borrower and the Lenders,
determine and notify to all parties any amendments which are required to be made to this
Schedule in order to comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.






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