Contract

EXHIBIT 4.5 EXECUTION COPY Published CUSIP Number: 45167SAA0================================================================================ $600,000,000 CREDIT AGREEMENT Dated as of December 14, 2004 among IDEX CORPORATION, as the Company, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agent LASALLE BANK, NATIONAL ASSOCIATION, MIZUHO CORPORATE BANK, LTD. and U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents and The Other Lenders Party Hereto BANC OF AMERICA SECURITIES LLC and WACHOVIA CAPITAL MARKETS LLC, as Lead Arrangers and Joint Book Managers================================================================================ TABLE OF CONTENTS

Page —- ARTICLE I DEFINITIONS…………………………………………. 1 1.01 Certain Defined Terms………………………………… 1 1.02 Other Interpretive Provisions…………………………. 7 1.03 Accounting Terms…………………………………….. 7 1.04 Exchange Rates; Currency Equivalents…………………… 7 1.05 Additional Alternative Currencies……………………… 7 1.06 Change of Currency…………………………………… 7 1.07 Rounding……………………………………………. 7 1.08 Times of Day………………………………………… 7 1.09 Letter of Credit Amounts……………………………… 7ARTICLE II THE CREDITS…………………………………………. 7 2.01 Committed Loans……………………………………… 7 2.02 Borrowings, Conversions and Continuations of Committed Loans……………………………………………… 7 2.03 Bid Loans…………………………………………… 7 2.04 Letters of Credit……………………………………. 7 2.05 Swing Line Loans…………………………………….. 7 2.06 Prepayments…………………………………………. 7 2.07 Termination or Reduction of Commitments………………… 7 2.08 Repayment of Loans…………………………………… 7 2.09 Interest……………………………………………. 7 2.10 Fees……………………………………………….. 7 2.11 Computation of Interest and Fees………………………. 2.12 Evidence of Debt…………………………………….. 7 2.13 Payments Generally; Administrative Agent’s Clawback……… 7 2.14 Sharing of Payments by Lenders………………………… 7 2.15 Increase in Commitments………………………………. 7 7ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY…………………. 7 3.01 Taxes………………………………………………. 7 3.02 Illegality………………………………………….. 7 3.03 Inability to Determine Rates………………………….. 7 3.04 Increased Costs……………………………………… 7 3.05 Compensation for Losses………………………………. 7 3.06 Mitigation Obligations; Replacement of Lenders………….. 7 3.07 Survival……………………………………………. 7 7ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS………………. 7 4.01 Conditions of Initial Credit Extensions………………… 7 4.02 Conditions to All Credit Extensions……………………. 7

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Page —- ARTICLE V REPRESENTATIONS AND WARRANTIES………………………… 7 5.01 Corporate Existence and Power…………………………. 7 5.02 Corporate Authorization; No Contravention………………. 7 5.03 Governmental Authorization……………………………. 7 5.04 Binding Effect………………………………………. 7 5.05 Litigation………………………………………….. 7 5.06 No Default………………………………………….. 7 5.07 ERISA Compliance…………………………………….. 7 5.08 Use of Proceeds; Margin Regulations……………………. 7 5.09 Title to Properties………………………………….. 7 5.10 Taxes………………………………………………. 7 5.11 Financial Condition………………………………….. 7 5.12 Environmental Matters………………………………… 7 5.13 Regulated Entities…………………………………… 7 5.14 Subsidiaries………………………………………… 7 5.15 Insurance…………………………………………… 7 5.16 Swap Obligations…………………………………….. 7 5.17 Full Disclosure……………………………………… 7 7ARTICLE VI AFFIRMATIVE COVENANTS………………………………… 7 6.01 Financial Statements…………………………………. 7 6.02 Certificates; Other Information……………………….. 7 6.03 Notices…………………………………………….. 7 6.04 Preservation of Corporate Existence, Etc……………….. 7 6.05 Maintenance of Property………………………………. 7 6.06 Insurance…………………………………………… 7 6.07 Payment of Tax Obligations……………………………. 7 6.08 Compliance with Laws…………………………………. 7 6.09 Compliance with ERISA………………………………… 7 6.10 Inspection of Property and Books and Records……………. 7 6.11 Environmental Laws…………………………………… 7 6.12 Use of Proceeds……………………………………… 7 7ARTICLE VII NEGATIVE AND FINANCIAL COVENANTS………………………. 7 7.01 Limitation on Liens………………………………….. 7 7.02 Disposition of Assets………………………………… 7 7.03 Consolidations and Mergers……………………………. 7 7.04 Loans and Investments………………………………… 7 7.05 Limitation on Indebtedness……………………………. 7 7.06 Transactions with Affiliates………………………….. 7 7.07 Contingent Obligations……………………………….. 7 7.08 Restricted Payments………………………………….. 7 7.09 ERISA………………………………………………. 7 7.10 Change in Business…………………………………… 7 7.11 Accounting Changes…………………………………… 7 7.12 Modifications, etc. of Subordinated Debt and Related Documents………………………………………….. 7 7.13 Sale-Leasebacks……………………………………… 7

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Page —- 7.14 No Negative Pledges; Subsidiary Payments……………….. 7 7.15 Financial Covenants………………………………….. 7ARTICLE VIII EVENTS OF DEFAULT……………………………………. 7 8.01 Event of Default…………………………………….. 7 8.02 Remedies Upon Event of Default………………………… 7 8.03 Application of Funds…………………………………. 7 7ARTICLE IX THE AGENT…………………………………………… 7 9.01 Appointment and Authority…………………………….. 7 9.02 Rights as a Lender…………………………………… 7 9.03 Exculpatory Provisions……………………………….. 7 9.04 Reliance by Administrative Agent………………………. 7 9.05 Delegation of Duties…………………………………. 7 9.06 Resignation of Administrative Agent……………………. 7 9.07 Non-Reliance on Administrative Agent and Other Lenders…… 7 9.08 No Other Duties, Etc…………………………………. 7 7ARTICLE X MISCELLANEOUS……………………………………….. 7 10.01 Amendments, Etc……………………………………… 7 10.02 Notices; Effectiveness; Electronic Communication………… 7 10.03 No Waiver; Cumulative Remedies………………………… 7 10.04 Expenses; Indemnity; Damage Waiver…………………….. 7 10.05 Payments Set Aside…………………………………… 7 10.06 Successors and Assigns……………………………….. 7 10.07 Treatment of Certain Information; Confidentiality……….. 7 10.08 Right of Setoff……………………………………… 7 10.09 Interest Rate Limitation……………………………… 7 10.10 Counterparts; Integration; Effectiveness……………….. 7 10.11 Survival of Representations and Warranties……………… 7 10.12 Severability………………………………………… 7 10.13 Replacement of Lenders……………………………….. 7 10.14 Governing Law; Jurisdiction; Etc………………………. 7 10.15 Waiver of Jury Trial…………………………………. 7 10.16 USA PATRIOT Act Notice……………………………….. 7 10.17 Judgment Currency……………………………………. 7 10.18 Entire Agreement…………………………………….. 7

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SCHEDULES Schedule 1.01 Mandatory Cost Formulae Schedule 2.01 Commitments and Applicable Percentages Schedule 2.04 Existing Letters of Credit Schedule 5.05 Litigation Schedule 5.07 ERISA Matters Schedule 5.11 Permitted Liabilities Schedule 5.12 Environmental Matters Schedule 5.14 Subsidiaries and Minority Interests Schedule 5.15 Insurance Matters Schedule 7.01 Permitted Liens Schedule 7.04 Permitted Investments Schedule 7.05 Permitted Indebtedness Schedule 7.07 Contingent Obligations Schedule 10.02 Lending Offices; Addresses for NoticesEXHIBITS Exhibit A Form of Committed Loan Notice Exhibit B-1 Form of Bid Request Exhibit B-2 Form of Competitive Bid Exhibit C Form of Swing Line Loan Notice Exhibit D Form of Note Exhibit E Form of Compliance Certificate Exhibit F Form of Assignment and Assumption

iv CREDIT AGREEMENT This CREDIT AGREEMENT is entered into as of December 14, 2004 among IDEXCORPORATION, a Delaware corporation (the “Company”), each lender from time totime party hereto (collectively, the “Lenders” and individually, a “Lender”),and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/CIssuer. The Company has requested that the Lenders provide a revolving creditfacility and the Lenders are willing to do so on the terms and conditions setforth herein. In consideration of the mutual covenants and agreements herein contained,the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS 1.01 CERTAIN DEFINED TERMS. As used in this Agreement, the followingterms have the meanings set forth below: “Absolute Rate” means a fixed rate of interest expressed in multiples of1/100th of one basis point. “Absolute Rate Loan” means a Bid Loan that bears interest at a ratedetermined with reference to an Absolute Rate. “Accounts Receivable” means presently existing and hereafter arising oracquired accounts receivable, general intangibles, choses in action and otherforms of obligations and receivables relating in any way to Inventory or arisingfrom the sale of Inventory or the rendering of services or howsoever otherwisearising, and, with respect to any of the foregoing receivables or obligations,(a) all of the interest of the Company or any of its Subsidiaries in the goods(including returned goods) the sale of which gave rise to such receivable orobligation after the passage of title thereto to any obligor, (b) all otherLiens and property subject thereto from time to time purporting to securepayment of such receivables or obligations, (c) all guarantees, insurance,letters of credit and other agreements or arrangements of whatever characterfrom time to time supporting or securing payment of any such receivables orobligations, (d) all interests of the Receivables Subsidiary under the documentsevidencing a Permitted Receivables Purchase Facility and any permittedperformance guaranty given in connection therewith, and (e) all records relatingto any of the foregoing and all proceeds and products of any of the foregoing. “Acquisition” means any transaction or series of related transactions forthe purpose of or resulting, directly or indirectly, in (a) the acquisition ofall or substantially all of the assets of a Person, or of any business ordivision of a Person or (b) the acquisition of in excess of 50% of the capitalstock, partnership interests, membership interests or equity of any Person, orotherwise causing any Person to become a Subsidiary. “Administrative Agent” means Bank of America in its capacity asadministrative agent under any of the Loan Documents, or any successoradministrative agent. “Administrative Agent’s Office” means, with respect to any currency, theAdministrative Agent’s address and, as appropriate, account as set forth onSchedule 10.02 with respect to such currency, or such other address or accountwith respect to such currency as the Administrative Agent may from time to timenotify to the Company and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in aform supplied by the Administrative Agent. “Affiliate” means, with respect to any Person, another Person thatdirectly, or indirectly through one or more intermediaries, Controls or isControlled by or is under common Control with the Person specified. “Aggregate Commitments” means the Commitments of all the Lenders. “Agreement” means this Credit Agreement as the same may be amended,supplemented, amended and restated or otherwise modified from time to time. “Alternative Currency” means each of Euro, Sterling, Yen, Swiss Francs,Canadian Dollars and each other currency (other than Dollars) that is approvedin accordance with Section 1.05. “Alternative Currency Equivalent” means, at any time, with respect to anyamount denominated in Dollars, the equivalent amount thereof in the applicableAlternative Currency as determined by the Administrative Agent or the L/CIssuer, as the case may be, at such time on the basis of the Spot Rate(determined in respect of the most recent Revaluation Date) for the purchase ofsuch Alternative Currency with Dollars. “Alternative Currency Sublimit” means an amount equal to the lesser of theAggregate Commitments and $300,000,000. The Alternative Currency Sublimit ispart of, and not in addition to, the Aggregate Commitments. “Applicable Percentage” means with respect to any Lender at any time, thepercentage (carried out to the ninth decimal place) of the Aggregate Commitmentsrepresented by such Lender’s Commitment at such time. If the commitment of eachLender to make Loans and the obligation of the L/C Issuer to make L/C CreditExtensions have been terminated pursuant to Section 8.02 or if the AggregateCommitments have expired, then the Applicable Percentage of each Lender shall bedetermined based on the Applicable Percentage of such Lender most recently ineffect, giving effect to any subsequent assignments. The initial ApplicablePercentage of each Lender is set forth opposite the name of such Lender onSchedule 2.01 or in the Assignment and Assumption pursuant to which such Lenderbecomes a party hereto, as applicable. “Applicable Rate” means, from time to time, the following percentages perannum, based upon the Debt Rating as set forth below: 2

APPLICABLE RATE EUROCURRENCY RATE + ————PRICING DEBT RATINGS FACILITY LETTERS OF BASE RATE LEVEL S&P/MOODY’S FEE CREDIT +- ——- ————– ——– ———— ——— 1 A/A2 or better 8.0 27.0 0 2 A-/A3 10.0 35.0 0 3 BBB+/Baa1 12.5 47.5 0 4 BBB/Baa2 15.0 55.0 0 5 BBB-/Baa3 20.0 75.0 0 or worse

“Debt Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “Debt Ratings”) of the Company’s non-credit-enhanced, senior unsecured long-term debt; provided that if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest), unless there is a split in Debt Ratings of more than one level, in which case the Pricing Level that is one Pricing Level higher than the lower Debt Rating shall apply.Initially, the Applicable Rate shall be determined based upon the Debt Ratingspecified in the certificate delivered pursuant to Section 4.01(f)(iv).Thereafter, each change in the Applicable Rate resulting from a publiclyannounced change in the Debt Rating shall be effective, in the case of anupgrade, during the period commencing on the date of delivery by the Company tothe Administrative Agent of notice thereof pursuant to Section 6.03(e) andending on the date immediately preceding the effective date of the next suchchange and, in the case of a downgrade, during the period commencing on the dateof the public announcement thereof and ending on the date immediately precedingthe effective date of the next such change. “Applicable Time” means, with respect to any borrowings and payments inany Alternative Currency, the local time in the place of settlement for suchAlternative Currency as may be determined by the Administrative Agent or the L/CIssuer, as the case may be, to be necessary for timely settlement on therelevant date in accordance with normal banking procedures in the place ofpayment. “Arrangers” means Banc of America Securities LLC and Wachovia CapitalMarkets LLC, in their capacities as lead arrangers. “Assignment and Assumption” means an assignment and assumption enteredinto by a Lender and an Eligible Assignee (with the consent of any party whoseconsent is required by Section 10.06(b)), and accepted by the AdministrativeAgent, in substantially the form of Exhibit F or any other form approved by theAdministrative Agent. 3 “Attributable Indebtedness” means, without duplication, on any date, (a)in respect of any Capital Lease of any Person, the capitalized amount thereofthat would appear on a balance sheet of such Person prepared as of such date inaccordance with GAAP, (b) in respect of any Off Balance Sheet Obligation whichis a lease, the capitalized amount of the remaining lease payments under therelevant lease that would appear on a balance sheet of such Person prepared asof such date in accordance with GAAP if such lease were accounted for as acapital lease, (c) in respect of any Permitted Receivables Purchase Facility,the amount of Receivables Facility Attributed Indebtedness and (d) in respect ofany other Off Balance Sheet Obligation, the amount of such Obligations whichwould reasonably be expected to be characterized as indebtedness upon theinsolvency or bankruptcy of such Person. “Availability Period” means the period from and including the Closing Dateto the earliest of (a) the Maturity Date, (b) the date of termination of theAggregate Commitments pursuant to Section 2.07, and (c) the date of terminationof the commitment of each Lender to make Loans and of the obligation of the L/CIssuer to make L/C Credit Extensions pursuant to Section 8.02. “Bank of America” means Bank of America, N.A. and its successors. “Base Rate” means for any day a fluctuating rate per annum equal to thehigher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interestin effect for such day as publicly announced from time to time by Bank ofAmerica as its “prime rate.” The “prime rate” is a rate set by Bank of Americabased upon various factors including Bank of America’s costs and desired return,general economic conditions and other factors, and is used as a reference pointfor pricing some loans, which may be priced at, above, or below such announcedrate. Any change in such rate announced by Bank of America shall take effect atthe opening of business on the day specified in the public announcement of suchchange. “Base Rate Committed Loan” means a Committed Loan that is a Base RateLoan. “Base Rate Loan” means a Loan that bears interest based on the Base Rate.All Base Rate Loans shall be denominated in Dollars. “Bid Borrowing” means a borrowing consisting of simultaneous Bid Loans ofthe same Type from each of the Lenders whose offer to make one or more Bid Loansas part of such borrowing has been accepted under the auction bidding proceduresdescribed in Section 2.03. “Bid Loan” has the meaning specified in Section 2.03(a). “Bid Loan Lender” means, in respect of any Bid Loan, the Lender makingsuch Bid Loan to the Company. “Bid Loan Sublimit” means an amount equal to $50,000,000. The Bid LoanSublimit is part of, and not in addition to, the Aggregate Commitments. “Bid Request” means a written request for one or more Bid Loanssubstantially in the form of Exhibit B-1. 4 “BofA Fee Letter” means the letter agreement, dated as of November 15,2004, among the Company, the Administrative Agent and Banc of America SecuritiesLLC. “Borrowing” means a Committed Borrowing, a Bid Borrowing or a Swing LineBorrowing, as the context may require. “Business Day” means any day other than a Saturday, Sunday or other day onwhich commercial banks are authorized to close under the Laws of, or are in factclosed in, the state where the Administrative Agent’s Office with respect toObligations denominated in Dollars is located and: (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Committed Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Committed Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Committed 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 Committed Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Committed Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Committed Loan, means a TARGET Day; (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Committed 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 Committed 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 Committed 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. “Canadian Dollar” means the lawful currency of Canada. “Capital Lease” has the meaning specified in the definition of “CapitalLease Obligations.” “Capital Lease Obligations” means the principal component of all monetaryobligations of the Company or any of its Subsidiaries under any leasing orsimilar arrangement which, in accordance with GAAP, is classified as a capitallease (“Capital Lease”). 5 “Cash Collateralize” has the meaning specified in Section 2.04(g). “Change in Law” means the occurrence, after the date of this Agreement, ofany of the following: (a) the adoption or taking effect of any law, rule,regulation or treaty, (b) any change in any law, rule regulation or treaty or inthe administration, interpretation or application thereof by any GovernmentalAuthority or (c) the making or issuance of any request, guideline or directive(whether or not having the force of law) by any Governmental Authority. “Change of Control” means any of the following: (i) any person or group ofpersons (within the meaning of the Exchange Act) shall have acquired beneficialownership (within the meaning of Rule 13d promulgated by the SEC under theExchange Act) of 30% or more of the issued and outstanding shares of theCompany’s capital stock having the right to vote for the election of directorsof the Company under ordinary circumstances; or (ii) during any period of twelveconsecutive calendar months, individuals who at the beginning of such periodconstituted the Company’s board of directors (together with any new directorswhose election by the Company’s board of directors or whose nomination forelection by the Company’s stockholders was approved by a vote of a majority ofthe directors then still in office who either were directors at the beginning ofsuch period or whose election or nomination for election was previously soapproved) cease for any reason other than death or disability to constitute amajority of the directors then in office. “Closing Date” means the first date all the conditions precedent inSection 4.01 are satisfied or waived in accordance with Section 10.01. “Code” means the Internal Revenue Code of 1986, and all rules andregulations promulgated thereunder. “Commitment” means, as to each Lender, its obligation to (a) makeCommitted Loans to the Company pursuant to Section 2.01, (b) purchaseparticipations in L/C Obligations, and (c) purchase participations in Swing LineLoans, in an aggregate principal amount at any one time outstanding not toexceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01or in the Assignment and Assumption pursuant to which such Lender becomes aparty hereto, as applicable, as such amount may be adjusted from time to time inaccordance with this Agreement. “Committed Borrowing” means a borrowing consisting of simultaneousCommitted Loans of the same Type, in the same currency and, in the case ofEurocurrency Rate Committed Loans, having the same Interest Period made by eachof the Lenders pursuant to Section 2.01. “Committed Loan” has the meaning specified in Section 2.01. “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) aconversion of Committed Loans from one Type to the other, or (c) a continuationof Eurocurrency Rate Committed Loans, pursuant to Section 2.02(a), which, if inwriting, shall be substantially in the form of Exhibit A. “Company” has the meaning specified in the introductory paragraph hereto. 6 “Competitive Bid” means a written offer by a Lender to make one or moreBid Loans, substantially in the form of Exhibit B-2, duly completed and signedby a Lender. “Compliance Certificate” means a certificate substantially in the form ofExhibit E. “Consolidated Debt” means, as of any date of determination, for theCompany and its Subsidiaries, without duplication, the sum of (a) allIndebtedness of the Company determined on a consolidated basis in accordancewith GAAP, (b) Attributable Indebtedness in respect of Capital Leases, OffBalance Sheet Obligations and a Permitted Receivables Purchase Facility, and (c)all Guaranty Obligations with respect to debt of the types specified insubsections (a) and (b) above of Persons other than the Company or anySubsidiary. “Consolidated Interest Expense” means, for any period, the sum, withoutduplication, of total interest expense (including that attributable to CapitalLeases in accordance with GAAP) of the Company and its Subsidiaries on aconsolidated basis with respect to all outstanding Indebtedness of the Companyand its Subsidiaries, including, without limitation, all commissions, discountsand other fees and charges owed with respect to letters of credit and bankers’acceptance financing, but excluding, however, any amortization of deferredfinancing costs, all as determined on a consolidated basis for the Company andits consolidated Subsidiaries in accordance with GAAP plus the interestcomponent of Off Balance Sheet Obligations. Any calculation of pro formaConsolidated Interest Expense with respect to an Acquisition shall be done onthe basis that (A) any Indebtedness incurred or assumed in connection with suchAcquisition was incurred or assumed at the beginning of the pro forma period,(B) such Indebtedness was repaid from operating cash flow over the pro formaperiod at the intervals and in the amounts reasonably projected to be paid inrespect of such Indebtedness over the 12-month period immediately following theAcquisition and (C) if such Indebtedness bears a floating interest rate, suchinterest shall be paid over the pro forma period at the rate in effect on thedate of such Acquisition. “Consolidated Net Income” and “Consolidated Net Loss” mean, respectively,with respect to any period for any Person, the aggregate of the net income(loss) of such Person for such period, determined in accordance with GAAP on aconsolidated basis, provided that the net income (loss) of any other Personwhich is not a Subsidiary shall be included in the Consolidated Net Income ofsuch Person only to the extent of the amount of cash dividends or distributionspaid to such Person or to a consolidated Subsidiary of such Person. There shallbe excluded from Consolidated Net Income (a) non-cash extraordinary losses aslong as no reserve is required to be established in accordance with GAAP and (b)the excess (but not the deficit), if any, of (i) any gain which must be treatedas an extraordinary item under GAAP or any gain realized upon the sale or otherdisposition of any real property or equipment that is not sold in the ordinarycourse of business or of any capital stock of a Subsidiary of such Person over(ii) any loss which is not excluded pursuant to subsection (a) above. “Consolidated Net Worth” means, as of any date of determination, for theCompany and its Subsidiaries on a consolidated basis, shareholders’ equity as ofthat date determined in accordance with GAAP. 7 “Consolidated Total Assets” means the total assets of the Company and itsSubsidiaries determined in accordance with GAAP. “Contingent Obligation” means, as to any Person, any direct or indirectliability of that Person, whether or not contingent, with or without recourse,(a) with respect to any Indebtedness, lease, dividend, letter of credit or otherobligation (the “primary obligations”) of another Person (the “primaryobligor”), including any obligation of that Person (i) to purchase, repurchaseor otherwise acquire such primary obligations or any security therefor, (ii) toadvance or provide funds for the payment or discharge of any such primaryobligation, or to maintain working capital or equity capital of the primaryobligor or otherwise to maintain the net worth or solvency or any balance sheetitem, level of income or financial condition of the primary obligor, (iii) topurchase property, securities or services primarily for the purpose of assuringthe owner of any such primary obligation of the ability of the primary obligorto make payment of such primary obligation, or (iv) otherwise to assure or holdharmless the holder of any such primary obligation against loss in respectthereof (each, a “Guaranty Obligation”); (b) with respect to any SuretyInstrument issued for the account of that Person or as to which that Person isotherwise liable for reimbursement of drawings or payments; (c) to purchase anymaterials, supplies or other property from, or to obtain the services of,another Person if the relevant contract or other related document or obligationrequires that payment for such materials, supplies or other property, or forsuch services, shall be made regardless of whether delivery of such materials,supplies or other property is ever made or tendered, or such services are everperformed or tendered, or (d) in respect of any Swap Contract. The amount of anyContingent Obligation shall (a) in the case of Guaranty Obligations, be deemedequal to the stated or determinable amount of the primary obligation in respectof which such Guaranty Obligation is made or, if not stated or ifindeterminable, the maximum reasonably anticipated liability in respect thereofprovided, that if any Guaranty Obligation (i) is limited to an amount less thanthe obligations guaranteed or supported the amount of the correspondingContingent Obligation shall be equal to the lesser of the amount determinedpursuant to the initial clause of this sentence and the amount to which suchguaranty is so limited or (ii) is limited to recourse against a particular assetor assets of such Person the amount of the corresponding Contingent Obligationshall be equal to the lesser of the amount determined pursuant to the initialclause of this sentence and the fair market value of such asset or assets at thedate for determination of the amount of the Contingent Obligation, (b) in thecase of other Contingent Obligations other than in respect of Swap Contracts, beequal to the maximum reasonably anticipated liability in respect thereof, and(c) in the case of Contingent Obligations in respect of Swap Contracts, be equalto the Swap Termination Value. “Contractual Obligation” means, as to any Person, any provision of anysecurity issued by such Person or of any agreement, undertaking, contract,indenture, mortgage, deed of trust or other instrument, document or agreement towhich such Person is a party or by which it or any of its property is bound. “Control” means the possession, directly or indirectly, of the power todirect or cause the direction of the management or policies of a Person, whetherthrough the ability to exercise voting power, by contract or otherwise.”Controlling” and “Controlled” have meanings correlative thereto. 8 “Credit Extension” means each of the following: (a) a Borrowing and (b) anL/C Credit Extension. “Debt Rating” has the meaning set forth in the definition of “ApplicableRate.” “Debtor Relief Laws” means the Bankruptcy Code of the United States, andall other liquidation, conservatorship, bankruptcy, assignment for the benefitof creditors, moratorium, rearrangement, receivership, insolvency,reorganization, or similar debtor relief Laws of the United States or otherapplicable jurisdictions from time to time in effect and affecting the rights ofcreditors generally. “Default” means any event or condition that constitutes an Event ofDefault or that, with the giving of any notice, the passage of time, or both,would be an Event of Default. “Default Rate” means (a) when used with respect to Obligations other thanLetter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) theApplicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;provided, however, that with respect to a Eurocurrency Rate Loan, the DefaultRate shall be an interest rate equal to the interest rate (including anyApplicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus2% per annum, and (b) when used with respect to Letter of Credit Fees, a rateequal to the Applicable Rate plus 2% per annum. “Defaulting Lender” means any Lender that (a) has failed to fund anyportion of the Committed Loans, participations in L/C Obligations orparticipations in Swing Line Loans required to be funded by it hereunder withinone Business Day of the date required to be funded by it hereunder, (b) hasotherwise failed to pay over to the Administrative Agent or any other Lender anyother amount required to be paid by it hereunder within one Business Day of thedate when due, unless the subject of a good faith dispute, or (c) has beendeemed insolvent or become the subject of a bankruptcy or insolvency proceeding. “Disposition” has the meaning specified in Section 7.02. “Dollar” and “$” mean lawful currency of the United States. “Dollar Equivalent” means, at any time, (a) with respect to any amountdenominated in Dollars, such amount, and (b) with respect to any amountdenominated in any Alternative Currency, the equivalent amount thereof inDollars as determined by the Administrative Agent or the L/C Issuer, as the casemay be, at such time on the basis of the Spot Rate (determined in respect of themost recent Revaluation Date) for the purchase of Dollars with such AlternativeCurrency. “Domestic Subsidiary” means any Subsidiary of the Company that is not aForeign Subsidiary. “EBIT” means, for any period, for the Company and its Subsidiaries on aconsolidated basis, determined in accordance with GAAP, the sum of (a)Consolidated Net Income for such period plus (b) all amounts treated as expensesfor interest plus (c) all accrued taxes plus (d) the 9interest component with respect to Off Balance Sheet Obligations, in each caseto the extent included in the determination of such Consolidated Net Income. “EBITDA” means, for any period, for the Company and its Subsidiaries on aconsolidated basis, determined in accordance with GAAP, the sum of (a) EBIT plus(b) all amounts treated as expenses for depreciation or the amortization ofintangibles of any kind to the extent included in the determination ofConsolidated Net Income, provided that in the event of the occurrence of anyAcquisition or Disposition during such period, EBITDA shall be calculated on apro forma basis as if such Acquisition or Disposition occurred on the first dayof the relevant period such that, in the case of an Acquisition, all income andexpense associated with the assets or entity acquired in connection with suchAcquisition for the most recently ended four fiscal quarter period for whichsuch income and expense amounts are available shall be treated as earned orincurred by the Company over the applicable period and, in the case of aDisposition, all income and expense associated with the assets or entity sold ortransferred during such period shall be eliminated over the applicable period. “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and(c) any other Person (other than a natural person) approved by (i) theAdministrative Agent, the L/C Issuer and the Swing Line Lender, and (ii) unlessan Event of Default under Section 8.01(f) or 8.01(g) has occurred and iscontinuing, or an Event of Default under Section 8.01(a) has occurred and iscontinuing for 20 days or more, the Company (each such approval not to beunreasonably withheld or delayed); provided that, notwithstanding the foregoing,(x) any assignment to a Person that is not a commercial bank shall not becomeeffective without the consent of the Company if, after giving effect thereto,such Person and its Affiliates would collectively hold more than 20% of theTotal Outstandings, (y) “Eligible Assignee” shall not include the Company or anyof the Company’s Affiliates or Subsidiaries; and (z) prior to termination of theCommitments, an Eligible Assignee shall include only a Lender, an Affiliate of aLender or another Person, which, through its Lending Offices, is capable oflending the applicable Alternative Currencies to the Company without theimposition of any Taxes or additional Taxes, as the case may be. The Company’swithholding of consent to an assignment, to the extent its consent is requiredabove, shall not be deemed unreasonable if the assignee is not a commercialbank, savings and loan association or savings bank having a combined capital andsurplus of $200,000,000. “EMU” means the economic and monetary union in accordance with the Treatyof Rome 1957, as amended by the Single European Act 1986, the Maastricht Treatyof 1992 and the Amsterdam Treaty of 1998. “EMU Legislation” means the legislative measures of the European Councilfor the introduction of, changeover to or operation of a single or unifiedEuropean currency. “Environmental Claims” means all claims, however asserted, by anyGovernmental Authority or other Person alleging potential liability orresponsibility for violation of any Environmental Law, or for release or injuryto the environment. “Environmental Laws” means all federal, state or local laws, statutes,common law duties, rules, regulations, ordinances and codes, together with alladministrative orders, directed 10duties, requests, licenses, authorizations and permits of, and agreements with,any Governmental Authorities, in each case relating to environmental, health,safety and land use matters. “ERISA” means the Employee Retirement Income Security Act of 1974, and allrules and regulations promulgated thereunder. “ERISA Affiliate” means any trade or business (whether or notincorporated) under common control with the Company within the meaning ofSection 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code forpurposes of provisions relating to Section 412 of the Code). “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan;(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plansubject to Section 4063 of ERISA during a plan year in which it was asubstantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessationof operations which is treated as such a withdrawal under Section 4062(e) ofERISA; (c) a complete or partial withdrawal by the Company or any ERISAAffiliate from a Multiemployer Plan or notification that a Multiemployer Plan isin reorganization; (d) the filing of a notice of intent to terminate, thetreatment of a Plan amendment as a termination under Section 4041 or 4041A ofERISA, or the commencement of proceedings by the PBGC to terminate a PensionPlan or Multiemployer Plan; (e) an event or condition which might reasonably beexpected to constitute grounds under Section 4042 of ERISA for the terminationof, or the appointment of a trustee to administer, any Pension Plan orMultiemployer Plan; or (f) the imposition of any liability under Title IV ofERISA, other than PBGC premiums due but not delinquent under Section 4007 ofERISA, upon the Company or any ERISA Affiliate. “Euro” and “EUR” means the lawful currency of the Participating MemberStates introduced in accordance with EMU legislation. “Eurocurrency Base Rate” has the meaning specified in the definition of”Eurocurrency Rate”. “Eurocurrency Bid Margin” means the margin above or below the EurocurrencyBase Rate to be added to or subtracted from the Eurocurrency Base Rate, whichmargin shall be expressed in multiples of 1/100th of one basis point. “Eurocurrency Margin Bid Loan” means a Bid Loan that bears interest at arate based upon the Eurocurrency Base Rate. All Eurocurrency Margin Bid Loansmust be denominated in Dollars. “Eurocurrency Rate” means for any Interest Period with respect to aEurocurrency Rate Loan, a rate per annum determined by the Administrative Agentpursuant to the following formula: Eurocurrency Base Rate Eurocurrency Rate = ————————————- 1.00 – Eurocurrency Reserve PercentageWhere, 11 “Eurocurrency Base Rate” means, for such Interest Period: (a) the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or (b) if such rate is not available at such time for any reason, then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in 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 (or, in the case of a Bid Loan, the applicable Bid Loan Lender) and with a term equivalent to such Interest Period would be offered by Bank of America’s (or such Bid Loan Lender’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 (or, in the case of Eurocurrency Rate Loans denominated in Sterling, the same Business Day as) the commencement of such Interest Period; or (c) for any Interest Period with respect to any Eurocurrency Rate Loan advanced by a Lender required to comply with the relevant requirements of the Bank of England and the Financial Services Authority of the United Kingdom, the sum of (i) the rate determined in accordance with clauses (a) or (b) of this definition and (ii) the Mandatory Cost for such Interest Period. “Eurocurrency Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage. “Eurocurrency Rate Committed Loan” means a Committed Loan that bearsinterest at a rate based on the Eurocurrency Rate. Eurocurrency Rate CommittedLoans may be denominated in Dollars or in an Alternative Currency. AllCommitted Loans denominated in an Alternative Currency must be EurocurrencyRate Committed Loans. “Eurocurrency Rate Loan” means a Eurocurrency Rate Committed Loan or aEurocurrency Margin Bid Loan. “Event of Default” has the meaning specified in Section 8.01. 12 “Exchange Act” means the Securities Exchange Act of 1934, and regulationspromulgated thereunder, in each case, as amended from time to time. “Excluded Taxes” means, with respect to the Administrative Agent, anyLender, the L/C Issuer or any other recipient of any payment to be made by or onaccount of any obligation of the Company hereunder, (a) taxes imposed on ormeasured by its net income (however denominated), and franchise taxes imposed onit (in lieu of net income taxes), by the jurisdiction (or any politicalsubdivision thereof) under the laws of which such recipient is organized or inwhich its principal office is located or, in which such Lender maintains alending office, (b) any branch profits taxes imposed by the United States or anysimilar tax imposed by any other jurisdiction in which the Company is locatedand (c) in the case of a Lender (other than an assignee pursuant to a request bythe Company under Section 10.13), any withholding tax that is imposed on amountspayable to such Lender at the time such Lender becomes a party hereto (ordesignates a new Lending Office) or is attributable to such Lender’s failure orinability (other than as a result of a Change in Law) to comply with Section3.01(e), except to the extent that such Lender (or its assignor, if any) wasentitled, at the time of designation of a new Lending Office (or assignment), toreceive additional amounts from the Company with respect to such withholding taxpursuant to Section 3.01(a). “Existing Credit Agreement” means that certain Credit Agreement among theCompany, Bank of America, as administrative agent, and the other financialinstitutions party thereto, dated June 8, 2001 (as the same have been amendedand modified from time to time). “Existing Letters of Credit” has the meaning specified in Section2.04(a)(i). “Existing Receivables Purchase Facility” means the receivables financingprogram providing for the sale or contribution of Accounts Receivable by theCompany and its Participating Subsidiaries directly or indirectly to theReceivables Subsidiary pursuant to that certain Receivables Purchase Agreementdated as of December 20, 2001 among the Receivables Subsidiary, the Company,Falcon Asset Securitization Corporation, and the several financial institutionsnamed therein (including any administrative, clerical or other immaterialamendments from time to time), and the securitization financing transactionrelated thereto or described therein. “Federal Funds Rate” means, for any day, the rate per annum equal to theweighted average of the rates on overnight Federal funds transactions withmembers of the Federal Reserve System arranged by Federal funds brokers on suchday, as published by the Federal Reserve Bank of New York on the Business Daynext 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 onthe next preceding Business Day as so published on the next succeeding BusinessDay, and (b) if no such rate is so published on such next succeeding BusinessDay, the Federal Funds Rate for such day shall be the average rate (roundedupward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank ofAmerica on such day on such transactions as determined by the AdministrativeAgent. “Fee Letters” means the BofA Fee Letter and the Wachovia Fee Letter. 13 “Foreign Lender” means any Lender that is not a U.S. person within themeaning of Section 7701(a)(30) of the Code. “Foreign Subsidiary” means any Subsidiary of the Company that (A) isincorporated under the laws of a jurisdiction other than any State of the U.S.,the District of Columbia or any territory, commonwealth or possession of theU.S. and (B) maintains the major portion of its assets outside the U.S. “FRB” means the Board of Governors of the Federal Reserve System of theUnited States, and any Governmental Authority succeeding to any of its principalfunctions. “Fund” means any Person (other than a natural person) that is (or will be)engaged in making, purchasing, holding or otherwise investing in commercialloans and similar extensions of credit in the ordinary course of its business. “GAAP” means generally accepted accounting principles set forth from timeto time in the opinions and pronouncements of the Accounting Principles Boardand the American Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board (or agencies withsimilar functions of comparable stature and authority within the U.S. accountingprofession), which are applicable to the circumstances as of (a) in the case ofany computation pursuant to Section 7.15, the date of this Agreement and (b) inall other cases, the applicable date. “Governmental Authority” means the government of the United States or anyother nation, or of any political subdivision thereof, whether state or local,and any agency, authority, instrumentality, regulatory body, court, central bankor other entity exercising executive, legislative, judicial, taxing, regulatoryor administrative powers or functions of or pertaining to government (includingany supra-national bodies such as the European Union or the European CentralBank). “Granting Lender” has the meaning specified in Section 10.06(h). “Guaranty Obligation” has the meaning specified in the definition of”Contingent Obligation.” “Indebtedness” of any Person means, without duplication, (a) allindebtedness for borrowed money; (b) all obligations issued, undertaken orassumed as the deferred purchase price of property or services (other than tradepayables entered into in the ordinary course of business on ordinary terms); (c)all non-contingent reimbursement or payment obligations with respect to SuretyInstruments; (d) all obligations evidenced by notes, bonds, debentures orsimilar instruments, including obligations so evidenced incurred in connectionwith the acquisition of property, assets or businesses; (e) all indebtednesscreated or arising under any conditional sale or other title retentionagreement, or incurred as financing, in either case with respect to propertyacquired by the Person (even though the rights and remedies of the seller orbank under such agreement in the event of default are limited to repossession orsale of such property); (f) all Capital Lease Obligations and Off Balance SheetObligations including all Receivables Facility Attributed Indebtedness; (g) allindebtedness referred to in subsections (a) through (f) above secured by (or forwhich the holder of such Indebtedness has an existing right, 14contingent or otherwise, to be secured by) any Lien upon or in property(including accounts and contracts rights) owned by such Person, even though suchPerson has not assumed or become liable for the payment of such Indebtedness;and (h) all Guaranty Obligations in respect of indebtedness or obligations ofothers of the kinds referred to in subsections (a) through (g) above. In theevent any of the foregoing Indebtedness is limited to recourse against aparticular asset or assets of such Person, the amount of the correspondingIndebtedness shall be equal to the lesser of the amount of such Indebtedness andthe fair market value of such asset or assets at the date for determination ofthe amount of such Indebtedness. In addition, the amount of any Indebtednesswhich is also a Contingent Obligation shall be determined as provided in thedefinition of “Contingent Obligation.” For all purposes of this Agreement, the Indebtedness of any Person shallinclude all Indebtedness of any partnership or Joint Venture or limitedliability company in which such Person is a general partner or a joint ventureror a member, but in any such case, only to the extent any such Indebtedness isrecourse to such Person. The amount of any Capital Lease or Off Balance SheetObligation as of any date shall be deemed to be the amount of AttributableIndebtedness in respect thereof as of such date. “Indemnified Taxes” means Taxes other than Excluded Taxes. “Indemnified Person” has the meaning specified in Section 10.04(b). “Independent Auditor” has the meaning specified in Section 6.01(a). “Insolvency Proceeding” means, with respect to any Person, (a) any case,action or proceeding with respect to such Person before any court or otherGovernmental Authority relating to Debtor Relief Laws or (b) any generalassignment for the benefit of creditors, composition, marshalling of assets forcreditors, or other, similar arrangement in respect of its creditors generallyor any substantial portion of its creditors, undertaken under Debtor ReliefLaws. “Intercompany Indebtedness” means Indebtedness of the Company or any ofits Subsidiaries which, in the case of the Company, is owing to any Subsidiaryof the Company and which, in the case of any Subsidiary, is owing to the Companyor any of the Company’s other Subsidiaries. “Interest Coverage Ratio” means, as of any date of determination, theratio of EBITDA for the period of the four prior fiscal quarters ending on suchdate to Consolidated Interest Expense for such period. “Interest Payment Date” means, (a) as to any Loan other than a Base RateLoan, the last day of each Interest Period applicable to such Loan and theMaturity Date; provided, however, that if any Interest Period for a EurocurrencyRate Loan exceeds three months, the respective dates that fall every threemonths after the beginning of such Interest Period shall also be InterestPayment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),the last Business Day of each March, June, September and December and theMaturity Date. 15 “Interest Period” means (a) as to each Eurocurrency Rate Loan, the periodcommencing on the date such Eurocurrency Rate Loan is disbursed or (in the caseof any Eurocurrency Rate Committed Loan) converted to or continued as aEurocurrency Rate Loan and ending on the date one, two, three or six monthsthereafter, as selected by the Company in its Committed Loan Notice or BidRequest, as the case may be, or, in the case of Eurocurrency Rate CommittedLoans, nine or twelve months if requested by the Company and consented to by allthe Lenders; and (b) as to each Absolute Rate Loan, a period of not less than 7days and not more than 183 days as selected by the Company in its Bid Request;provided that: (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (iii) no Interest Period shall extend beyond the Maturity Date. “Inventory” means, inclusively, all inventory as defined in the UniformCommercial Code in effect in the State of Illinois from time to time and allgoods, merchandise and other personal property wherever located, now owned orhereafter acquired by the Company or any of its Subsidiaries of every kind ordescription which are held for sale or lease or are furnished or to be furnishedunder a contract of service or are raw materials, work-in-process or materialsused or consumed or to be used or consumed in the Company’s or any of itsSubsidiaries’ business. “Investments” has the meaning specified in Section 7.04. “IRS” means the Internal Revenue Service, and any Governmental Authoritysucceeding to any of its principal functions under the Code. “ISP” means, with respect to any Letter of Credit, the “InternationalStandby Practices 1998” published by the Institute of International Banking Law& Practice (or such later version thereof as may be in effect at the time ofissuance). “Issuer Documents” means with respect to any Letter of Credit, the Letterof Credit Application, and any other document, agreement and instrument enteredinto by the L/C Issuer and the Company (or any Subsidiary) or in favor the L/CIssuer and relating to any such Letter of Credit. “Joint Venture” means a single-purpose corporation, partnership, limitedliability company, joint venture or other similar legal arrangement (whethercreated by contract or conducted through a separate legal entity) now orhereafter formed by the Company or any of its Subsidiaries with another Personin order to conduct a common venture or enterprise with such Person. 16 “L/C Advance” means, with respect to each Lender, such Lender’s funding ofits participation in any L/C Borrowing in accordance with its ApplicablePercentage. All L/C Advances shall be denominated in Dollars. “L/C Borrowing” means an extension of credit resulting from a drawingunder any Letter of Credit which has not been reimbursed on the date when madeor refinanced as a Committed Borrowing. All L/C Borrowings shall be denominatedin Dollars. “L/C Credit Extension” means, with respect to any Letter of Credit, theissuance thereof or extension of the expiry date thereof, or the increase of theamount thereof. “L/C Issuer” means Bank of America in its capacity as issuer of Letters ofCredit hereunder, or any successor issuer of Letters of Credit hereunder. “L/C Obligations” means, as at any date of determination, the aggregateamount available to be drawn under all outstanding Letters of Credit plus theaggregate of all Unreimbursed Amounts, including all L/C Borrowings. Forpurposes of computing the amount available to be drawn under any Letter ofCredit, the amount of such Letter of Credit shall be determined in accordancewith Section 1.09. For all purposes of this Agreement, if on any date ofdetermination a Letter of Credit has expired by its terms but any amount maystill 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 soremaining available to be drawn. “Laws” means, collectively, all international, foreign, federal, state andlocal statutes, treaties, rules, guidelines, regulations, ordinances, codes andadministrative or judicial precedents or authorities, including theinterpretation or administration thereof by any Governmental Authority chargedwith the enforcement, interpretation or administration thereof, and allapplicable administrative orders, licenses, authorizations and permits of, andagreements with, any Governmental Authority, in each case whether or not havingthe force of law. “Lender” has the meaning specified in the introductory paragraph heretoand, as the context requires, includes the Swing Line Lender. “Lending Office” means, as to any Lender, the office or offices of suchLender described as such in such Lender’s Administrative Questionnaire, or suchother office or offices as a Lender may from time to time notify the Company andthe Administrative Agent. “Letter of Credit” means any letter of credit issued hereunder and shallinclude the Existing Letters of Credit. A Letter of Credit may be a commercialletter of credit or a standby letter of credit. Letter of Credit may be issuedin Dollars or in an Alternative Currency. “Letter of Credit Application” means an application and agreement for theissuance or amendment of a Letter of Credit in the form from time to time in useby the L/C Issuer. “Letter of Credit Expiration Date” means the day that is seven days priorto the Maturity Date then in effect (or, if such day is not a Business Day, thenext preceding Business Day). “Letter of Credit Fee” has the meaning specified in Section 2.04(i). 17 “Letter of Credit Sublimit” means an amount equal to $50,000,000. TheLetter of Credit Sublimit is part of, and not in addition to, the AggregateCommitments. “Leverage Ratio” means, as of any date of determination, for the Companyand its Subsidiaries, the ratio of (a) Consolidated Debt as of such date to (b)EBITDA for the period of the four fiscal quarters ending on such date. “Lien” means any mortgage, pledge, hypothecation, assignment, depositarrangement, encumbrance, lien (statutory or other), charge, or preference,priority or other security interest or preferential arrangement in the nature ofa security interest of any kind or nature whatsoever (including any conditionalsale or other title retention agreement, any easement, right of way or otherencumbrance on title to real property, and any financing lease havingsubstantially the same economic effect as any of the foregoing), but, in anysuch case, not including the interest of a lessor under an operating lease whichdoes not constitute Off Balance Sheet Obligations or the interest of a purchaserof Accounts Receivable under any Permitted Receivables Purchase Facility. “Loan” means an extension of credit by a Lender to the Company underArticle II in the form of a Committed Loan, a Bid Loan or a Swing Line Loan. “Loan Documents” means this Agreement, each Note, each Issuer Document andthe Fee Letters. “Mandatory Cost” means, with respect to any period, the percentage rateper annum determined in accordance with Schedule 1.01. “Margin Stock” means “margin stock” as such term is defined in RegulationT, U or X of the FRB. “Material Adverse Effect” means (a) a material adverse change in, or amaterial adverse effect upon, the operations, business, properties, or financialcondition of the Company and its Subsidiaries taken as a whole; (b) a materialimpairment of the ability of the Company and its Subsidiaries to perform underany material Loan Document; or (c) a material adverse effect upon the legality,validity, binding effect or enforceability against the Company or any Subsidiaryof any material Loan Document. “Material Subsidiary” means, at any time, any Subsidiary having at suchtime total assets, as of the last day of the preceding fiscal quarter, having anet book value in excess of 10% of Consolidated Total Assets, based upon theCompany’s most recent annual or quarterly financial statements delivered to theAdministrative Agent under Section 6.01. “Maturity Date” means December 14, 2009. “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto. “Multiemployer Plan” means any employee benefit plan of the typedescribed in Section 4001(a)(3) of ERISA, to which the Company or any ERISAAffiliate makes, is making, or is 18obligated to make contributions or, during the preceding three calendar years,has made, or been obligated to make, contributions. “Note” means a promissory note made by the Company in favor of a Lenderevidencing Loans made by such Lender, substantially in the form of Exhibit D. “Obligations” means all advances to, and debts, liabilities, obligations,covenants and duties of, the Company arising under any Loan Document orotherwise with respect to any Loan or Letter of Credit, whether direct orindirect (including those acquired by assumption), absolute or contingent, dueor to become due, now existing or hereafter arising and including interest andfees that accrue after the commencement by or against the Company or anyAffiliate thereof of any proceeding under any Debtor Relief Laws naming suchPerson as the debtor in such proceeding, regardless of whether such interest andfees are allowed claims in such proceeding. “OFAC” means the U.S. Department of the Treasury’s Office of ForeignAssets Control. “Off Balance Sheet Obligation” means the monetary obligation of a Personunder (a) a so-called synthetic, off-balance sheet or tax retention lease, (b)an agreement for the use or possession of property creating obligations that donot appear on the balance sheet of such Person but which, upon the insolvency orbankruptcy of such Person, would be characterized as the indebtedness of suchPerson (without regard to accounting treatment), or (c) AttributableIndebtedness and other obligations in respect of a Permitted ReceivablesPurchase Facility. The interest component of Off Balance Sheet Obligations shallmean in the case of a lease, those monetary obligations which would, inaccordance with GAAP, be treated as interest if such lease was a Capital Lease,and in all other cases shall be the amount which would be characterized asinterest upon the insolvency or bankruptcy of such Person (assuming, forpurposes of any Permitted Receivables Purchase Facility, that such sale does notconstitute a true sale). “Organization Documents” means, for any corporation, the certificate orarticles of incorporation, the bylaws, any certificate of determination orinstrument relating to the rights of preferred shareholders of such corporation,any shareholder rights agreement, and all applicable resolutions of the board ofdirectors (or any committee thereof) of such corporation. “Other Taxes” means any present or future stamp, court or documentarytaxes or any other excise or property taxes, charges or similar levies whicharise from any payment made hereunder or from the execution, delivery,performance, enforcement or registration of, or otherwise with respect to, thisAgreement or any other Loan Documents. “Outstanding Amount” means (i) with respect to Committed Loans on anydate, the Dollar Equivalent amount of the aggregate outstanding principal amountthereof after giving effect to any borrowings and prepayments or repayments ofsuch Committed Loans occurring on such date; (ii) with respect to Swing LineLoans on any date, the aggregate outstanding principal amount thereof aftergiving effect to any borrowings and prepayments or repayments of such Swing LineLoans occurring on such date; and (iii) with respect to any L/C Obligations onany date, the Dollar Equivalent amount of the aggregate outstanding amount ofsuch L/C Obligations on such date after giving effect to any L/C CreditExtension occurring on such date and any other 19changes in the aggregate amount of the L/C Obligations as of such date,including as a result of any reimbursements by the Company of UnreimbursedAmounts. “Overnight Rate” means, for any day, (a) with respect to any amountdenominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) anovernight rate determined by the Administrative Agent, the L/C Issuer, or theSwing Line Lender, as the case may be, in accordance with banking industry ruleson interbank compensation, and (b) with respect to any amount denominated in anAlternative Currency, the rate of interest per annum at which overnight depositsin the applicable Alternative Currency, in an amount approximately equal to theamount with respect to which such rate is being determined, would be offered forsuch day by a branch or Affiliate of Bank of America in the applicable offshoreinterbank market for such currency to major banks in such interbank market. “Participant” has the meaning specified in Section 10.06(d). “Participating Member State” means each state so described in any EMULegislation. “Participating Subsidiary” means any Subsidiary of the Company that is aparticipant in any Permitted Receivables Purchase Facility. “PBGC” means the Pension Benefit Guaranty Corporation, or any GovernmentalAuthority succeeding to any of its principal functions under ERISA. “Pension Plan” means any “employee pension benefit plan” (as such term isdefined in Section 3(2) of ERISA), other than a Multiemployer Plan, that issubject to Title IV of ERISA and is sponsored or maintained by the Company orany ERISA Affiliate or to which the Company or any ERISA Affiliate contributesor has an obligation to contribute, or in the case of a multiple employer plan(as described in Section 4064(a) of ERISA) has made contributions at any timeduring the immediately preceding five plan years. “Permitted Acquisition” means any Acquisition by the Company or aSubsidiary of the Company if all of the following conditions are met: (a) no Default or Event of Default has occurred and is continuing or would result therefrom; (b) if the Person to be acquired would be a Material Subsidiary of the Company upon completion of the Acquisition or if the assets to be acquired have a net book value in excess of 10% of Consolidated Total Assets, based upon the Company’s most recent annual or quarterly financial statements delivered to the Administrative Agent under Section 6.01, then prior to the consummation of such Acquisition, the Company shall provide to the Administrative Agent pro forma financial statements and projections for the Company on a consolidated basis giving effect to such Acquisition and demonstrating pro forma compliance with Section 7.15 (without giving effect to any cost savings) for the period of four fiscal quarters ending with the fiscal quarter for which financial statements have most recently been delivered (or were required to be delivered) under Section 6.01, all in such detail as shall be reasonably satisfactory to the Administrative Agent; and 20 (c) the prior, effective written consent or approval of such Acquisition by the board of directors or equivalent governing body of the acquiree is obtained. “Permitted Liens” has the meaning specified in Section 7.01. “Permitted Receivables Purchase Facility” means any receivables financingprogram providing for the sale or contribution of Accounts Receivable by theCompany and its Participating Subsidiaries directly or indirectly to theReceivables Subsidiary in transactions purporting to be sales (and treated assales for GAAP purposes), which Receivables Subsidiary shall finance thepurchase of such Accounts Receivable by the sale, transfer, conveyance, lien orpledge of such Accounts Receivable to one or more limited purpose financingcompanies, special purpose entities and/or other financial institutions, in eachcase, on a basis that does not provide, directly or indirectly, for recourseagainst the seller of such Accounts Receivable (or against any of such seller’sAffiliates other than the Receivables Subsidiary) by way of a guaranty or anyother support arrangement, with respect to the amount of such AccountsReceivable (based on the financial condition or circumstances of the obligorthereunder), other than such limited recourse as is reasonable given marketstandards for transactions of a similar type, taking into account such factorsas historical bad debt loss experience and obligor concentration levels;provided that any such transaction described in the foregoing clause shall beconsummated pursuant to documentation in form and substance reasonablysatisfactory to Agent, as evidenced by its written approval thereof. TheExisting Receivables Purchase Facility shall be deemed to be a PermittedReceivables Purchase Facility. “Permitted Swap Obligations” means all obligations (contingent orotherwise) of the Company or any Subsidiary existing or arising under SwapContracts, provided that each of the following criteria is satisfied: (a) suchobligations are (or were) entered into by such Person in the ordinary course ofbusiness for the purpose of directly mitigating risks associated withliabilities, commitments or assets held or reasonably anticipated by suchPerson, or changes in the value of securities issued by such Person inconjunction with a securities repurchase program not otherwise prohibitedhereunder, and not for purposes of speculation or taking a “market view;” and(b) such Swap Contracts do not contain any provision (“walk-away” provision)exonerating the non-defaulting party from its obligation to make payments onoutstanding transactions to the defaulting party. “Person” means any natural person, corporation, limited liability company,trust, joint venture, association, company, partnership, Governmental Authorityor other entity. “Plan” means an employee benefit plan (as defined in Section 3(3) ofERISA) which the Company or an ERISA Affiliate sponsors or maintains or to whichthe Company or an ERISA Affiliate makes, is making, or is obligated to makecontributions and includes any Pension Plan. “Receivables Facility Attributed Indebtedness” at any time shall mean theaggregate net outstanding amount theretofore paid to the Receivables Subsidiaryin respect of the Accounts Receivable sold or transferred by it in connectionwith a Permitted Receivables Purchase Facility (it being the intent of theparties that the amount of Receivables Facility Attributed Indebtedness at anytime outstanding approximate as closely as possible the principal amount ofIndebtedness 21which would be outstanding at such time under such Permitted ReceivablesPurchase Facility if the same were structured as a secured lending agreementrather than a purchase agreement). “Receivables Subsidiary” means IDEX Receivables Corporation and any otherspecial purpose, bankruptcy remote Wholly-Owned Subsidiary of the Company whichmay be formed for the sole and exclusive purpose of engaging in activities inconnection with the purchase, sale and financing of Accounts Receivable inconnection with and pursuant to a Permitted Receivables Purchase Facility. “Refinancing Indebtedness” means Indebtedness incurred to refinance otherIndebtedness as long as such refinancing does not (i) result in an increase inthe total principal amount thereof by an amount in excess of accrued interest,call premiums and expenses incurred in connection with such refinancing or (ii)create Indebtedness with a weighted average life to maturity that is less thanthe weighted average life to maturity of the Indebtedness being refinanced orshorten the final maturity of the Indebtedness being refinanced, provided thatif such Indebtedness being refinanced is Indebtedness of the Company, then suchRefinancing Indebtedness shall be Indebtedness solely of the Company. “Related Parties” means, with respect to any Person, such Person’sAffiliates and the partners, directors, officers, employees, agents and advisorsof such Person and of such Person’s Affiliates. “Reportable Event” means, any of the events set forth in Section 4043(c)of ERISA or the regulations thereunder, other than any such event for which the30-day notice requirement under ERISA has been waived in regulations issued bythe PBGC. “Request for Credit Extension” means (a) with respect to a Borrowing,conversion or continuation of Committed Loans, a Committed Loan Notice, (b) withrespect to a Bid Loan, a Bid Request, (c) with respect to an L/C CreditExtension, a Letter of Credit Application, and (d) with respect to a Swing LineLoan, a Swing Line Loan Notice. “Required Lenders” means, as of any date of determination, Lenders havingmore than 50% of the Aggregate Commitments or, if the commitment of each Lenderto make Loans and the obligation of the L/C Issuer to make L/C Credit Extensionshave been terminated pursuant to Section 8.02, Lenders holding in the aggregatemore than 50% of the Total Outstandings (with the aggregate amount of eachLender’s risk participation and funded participation in L/C Obligations andSwing Line Loans being deemed “held” by such Lender for purposes of thisdefinition); provided that the Commitment of, and the portion of the TotalOutstandings held or deemed held by, any Defaulting Lender shall be excluded forpurposes of making a determination of Required Lenders. “Requirement of Law” means, as to any Person, any law (statutory orcommon), treaty, rule or regulation or determination of an arbitrator or of aGovernmental Authority, in each case applicable to or binding upon the Person orany of its property or to which the Person or any of its property is subject. 22 “Responsible Officer” means the chief executive officer, the chiefoperating officer, the president, the chief financial officer, the controller orthe treasurer of the Company, or any other officer having substantially the sameauthority and responsibility. “Restricted Payment” has the meaning specified in Section 7.08. “Revaluation Date” means (a) with respect to any Loan, each of thefollowing: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominatedin an Alternative Currency, (ii) each date of a continuation of a EurocurrencyRate Loan denominated in an Alternative Currency pursuant to Section 2.02, and(iii) such additional dates as the Administrative Agent shall determine or theRequired Lenders shall require; and (b) with respect to any Letter of Credit,each of the following: (i) each date of issuance of a Letter of Creditdenominated in an Alternative Currency, (ii) each date of an amendment of anysuch Letter of Credit having the effect of increasing the amount thereof (solelywith respect to the increased amount), (iii) each date of any payment by the L/CIssuer under any Letter of Credit denominated in an Alternative Currency, (iv)in the case of the Existing Letters of Credit, the Closing Date, and (v) suchadditional dates as the Administrative Agent or the L/C Issuer shall determineor the Required Lenders shall require. “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto. “Sale and Leaseback Transaction” means any arrangement, directly orindirectly, whereby a seller or transferor shall sell or otherwise transfer anyreal or personal property and then or thereafter lease, or repurchase under anextended purchase contract, conditional sales or other title retentionagreement, the same or similar property. “Same Day Funds” means (a) with respect to disbursements and payments inDollars, immediately available funds, and (b) with respect to disbursements andpayments in an Alternative Currency, same day or other funds as may bedetermined by the Administrative Agent or the L/C Issuer, as the case may be, tobe customary in the place of disbursement or payment for the settlement ofinternational banking transactions in the relevant Alternative Currency. “SEC” means the Securities and Exchange Commission, or any GovernmentalAuthority succeeding to any of its principal functions. “SPC” has the meaning specified in Section 10.06(h). “Special Notice Currency” means at any time an Alternative Currency, otherthan the currency of a country that is a member of the Organization for EconomicCooperation and Development at such time located in North America or Europe. “Spot Rate” for a currency means the rate determined by the AdministrativeAgent or the L/C Issuer, as applicable, to be the rate quoted by the Personacting in such capacity as the spot rate for the purchase by such Person of suchcurrency with another currency through its principal foreign exchange tradingoffice at approximately 10:00 a.m. on the date two Business Days prior to thedate as of which the foreign exchange computation is made; provided that the 23Administrative Agent or the L/C Issuer may obtain such spot rate from anotherfinancial institution designated by the Administrative Agent or the L/C Issuerif the Person acting in such capacity does not have as of the date ofdetermination a spot buying rate for any such currency; and provided furtherthat the L/C Issuer may use such spot rate quoted on the date as of which theforeign exchange computation is made in the case of any Letter of Creditdenominated in an Alternative Currency. “Sterling” and “{pound-sterling}” mean the lawful currency of the UnitedKingdom. “Subordinated Debt” shall mean all unsecured Indebtedness of the Companyfor money borrowed which is subordinated in form and substance to theObligations, and which has terms of payment, covenants and remedies, allsatisfactory to the Required Lenders as evidenced by their written approvalthereof. “Subsidiary” of a Person means any corporation, association, partnership,limited liability company, joint venture or other business entity of which morethan 50% of the securities, membership interests or other equity interestshaving ordinary voting power for the election of directors or other governingbody are at the time beneficially owned or controlled directly or indirectly bythe Person, or one or more of the Subsidiaries of the Person, or a combinationthereof. Unless the context otherwise clearly requires, references herein to a”Subsidiary” refer to a Subsidiary of the Company. “Surety Instruments” means all letters of credit (including standby andcommercial), banker’s acceptances, bank guaranties, shipside bonds, surety bondsand similar instruments. “Swap Contract” means any agreement, whether or not in writing, relatingto any transaction that is a rate swap, basis swap, forward rate transaction,commodity swap, commodity option, equity or equity index swap or option, bond,note or bill option, interest rate option, forward foreign exchange transaction,cap, collar or floor transaction, currency swap, cross-currency rate swap,swaption, currency option or any other, similar transaction (including anyoption to enter into any of the foregoing) or any combination of the foregoing,and, unless the context otherwise clearly requires, any master agreementrelating to or governing any or all of the foregoing. “Swap Termination Value” means, in respect of any one or more SwapContracts, after taking into account the effect of any legally enforceablenetting agreement relating to such Swap Contracts, (a) for any date on or afterthe date such Swap Contracts have been closed out and termination value(s)determined in accordance therewith, such termination value(s), and (b) for anydate prior to the date referenced in subsection (a) the amount(s) determined asthe mark-to-market value(s) for such Swap Contracts, as determined by theCompany based upon one or more mid-market or other readily available quotationsprovided by any recognized dealer in such Swap Contracts (which may include anyLender). “Swing Line” means the revolving credit facility made available by theSwing Line Lender pursuant to Section 2.05. “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant toSection 2.05. 24 “Swing Line Lender” means Bank of America in its capacity as provider ofSwing Line Loans, or any successor swing line lender hereunder. “Swing Line Loan” has the meaning specified in Section 2.05(a). “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuantto Section 2.05(b), which, if in writing, shall be substantially in the form ofExhibit C. “Swing Line Sublimit” means an amount equal to the lesser of (a)$25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is partof, and not in addition to, the Aggregate Commitments. “Swiss Franc” means the lawful currency of Switzerland. “TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if suchpayment system ceases to be operative, such other payment system (if any)determined by the Administrative Agent to be a suitable replacement) is open forthe settlement of payments in Euro. “Taxes” means all present or future taxes, levies, imposts, duties,deductions, withholdings, assessments, fees or other similar charges imposed byany Governmental Authority, including any interest, additions to tax orpenalties applicable thereto not attributable to the gross negligence or willfulmisconduct of the Lender or Administrative Agent, as applicable. “Total Outstandings” means the aggregate Outstanding Amount of all Loansand all L/C Obligations. “Type” means (a) with respect to a Committed Loan, its character as a BaseRate Loan or a Eurocurrency Rate Loan, and (b) with respect to a Bid Loan, itscharacter as an Absolute Rate Loan or a Eurocurrency Margin Bid Loan. “Unfunded Pension Liability” means the excess of a Plan’s benefitliabilities under Section 4001(a)(16) of ERISA, over the current value of thatPlan’s assets, determined in accordance with the assumptions used for fundingthe Pension Plan pursuant to Section 412 of the Code for the applicable planyear. “United States” and “U.S.” each means the United States of America. “Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i). “Wachovia Fee Letter” means the letter agreement, dated as of November15, 2004, between the Company and Wachovia Capital Markets LLC. “Wholly-Owned Subsidiary” means any corporation in which (other thandirectors’ qualifying shares required by law) 100% of the capital stock of eachclass having ordinary voting power, and 100% of the capital stock of every otherclass, in each case, at the time as of which 25any determination is being made, is owned, beneficially and of record, by theCompany, or by one or more of the other Wholly-Owned Subsidiaries, or both. “Yen” and “(Y)” mean the lawful currency of Japan. 1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreementand each other Loan Document, unless otherwise specified herein or in suchother Loan Document: (a) The definitions of terms herein shall apply equally to the singularand plural forms of the terms defined. Whenever the context may require, anypronoun shall include the corresponding masculine, feminine and neuter forms.The words “include,” “includes” and “including” shall be deemed to be followedby the phrase “without limitation.” The word “will” shall be construed to havethe same meaning and effect as the word “shall.” Unless the context requiresotherwise, (i) any definition of or reference to any agreement, instrument orother document (including any Organization Document) shall be construed asreferring to such agreement, instrument or other document as from time to timeamended, supplemented or otherwise modified (subject to any restrictions onsuch amendments, supplements or modifications set forth herein or in any otherLoan Document), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,””hereof” and “hereunder,” and words of similar import when used in any LoanDocument, shall be construed to refer to such Loan Document in its entirety andnot to any particular provision thereof, (iv) all references in a Loan Documentto Articles, Sections, Exhibits and Schedules shall be construed to refer toArticles and Sections of, and Exhibits and Schedules to, the Loan Document inwhich such references appear, (v) any reference to any law shall include allstatutory and regulatory provisions consolidating, amending replacing orinterpreting such law and any reference to any law or regulation shall, unlessotherwise specified, refer to such law or regulation as amended, modified orsupplemented from time to time, and (vi) the words “asset” and “property” shallbe construed to have the same meaning and effect and to refer to any and alltangible and intangible assets and properties, including cash, securities,accounts and contract rights. (b) In the computation of periods of time from a specified date to alater specified date, the word “from” means “from and including;” the words”to” and “until” each mean “to but excluding;” and the word “through” means “toand including.” (c) Section headings herein and in the other Loan Documents areincluded for convenience of reference only and shall not affect theinterpretation of this Agreement or any other Loan Document. 1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not specifically or completelydefined herein shall be construed in conformity with, and all financial data(including financial ratios and other financial calculations) required to besubmitted pursuant to this Agreement shall be prepared in conformity with, GAAPapplied on a consistent basis, as in effect from time to time, applied in amanner consistent with that used in preparing the Company’s audited financialstatements, except as otherwise specifically prescribed herein. 26 (b) Changes in GAAP. If at any time any change in GAAP would affectthe computation of any financial ratio or requirement set forth in any LoanDocument, and either the Company or the Required Lenders shall so request, theAdministrative Agent, the Lenders and the Company shall negotiate in good faithto amend such ratio or requirement to preserve the original intent thereof inlight of such change in GAAP (subject to the approval of the Required Lenders);provided that, until so amended, (i) such ratio or requirement shall continueto be computed in accordance with GAAP prior to such change therein and (ii) inthe event of any request to negotiate to amend pursuant to this Section, theCompany shall provide to the Administrative Agent and the Lenders financialstatements and other documents required under this Agreement or as reasonablyrequested hereunder setting forth a reconciliation between calculations of suchratio or requirement made before and after giving effect to such change inGAAP. 1.04 EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Administrative Agent or the L/C Issuer, as applicable, shalldetermine the Spot Rates as of each Revaluation Date to be used for calculatingDollar Equivalent amounts of Credit Extensions and Outstanding Amountsdenominated in Alternative Currencies. Such Spot Rates shall become effectiveas of such Revaluation Date and shall be the Spot Rates employed in convertingany amounts between the applicable currencies until the next Revaluation Dateto occur. Except for purposes of financial statements delivered by the Companyhereunder or calculating financial covenants hereunder or except as otherwiseprovided herein, the applicable amount of any currency (other than Dollars) forpurposes of the Loan Documents shall be such Dollar Equivalent amount as sodetermined by the Administrative Agent or the L/C Issuer, as applicable. (b) Wherever in this Agreement in connection with a CommittedBorrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loanor the issuance, amendment or extension of a Letter of Credit, an amount, suchas a required minimum or multiple amount, is expressed in Dollars, but suchCommitted Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominatedin an Alternative Currency, such amount shall be the relevant AlternativeCurrency Equivalent of such Dollar amount (rounded to the nearest unit of suchAlternative Currency, with 0.5 of a unit being rounded upward), as determinedby the Administrative Agent or the L/C Issuer, as the case may be. 1.05 ADDITIONAL ALTERNATIVE CURRENCIES. (a) The Company may from time to time request that Eurocurrency RateLoans be made and/or Letters of Credit be issued in a currency other than thosespecifically listed in the definition of “Alternative Currency;” provided thatsuch requested currency is a lawful currency (other than Dollars) that isreadily available and freely transferable and convertible into Dollars. In thecase of any such request with respect to the making of Eurocurrency Rate Loans,such request shall be subject to the approval of the Administrative Agent andeach of the Lenders; and in the case of any such request with respect to theissuance of Letters of Credit, such request shall be subject to the approval ofthe Administrative Agent and the L/C Issuer. 27 (b) Any such request shall be made to the Administrative Agent notlater than 10:00 a.m., 10 Business Days prior to the date of the desired CreditExtension (or such other time or date as may be agreed by the AdministrativeAgent and, in the case of any such request pertaining to Letters of Credit, theL/C Issuer, in its or their sole discretion). In the case of any such requestpertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptlynotify each Lender thereof; and in the case of any such request pertaining toLetters of Credit, the Administrative Agent shall promptly notify the L/CIssuer thereof. Each Lender (in the case of any such request pertaining toEurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertainingto Letters of Credit) shall notify the Administrative Agent, not later than10:00 a.m., ten Business Days after receipt of such request whether itconsents, in its sole discretion, to the making of Eurocurrency Rate Loans orthe issuance of Letters of Credit, as the case may be, in such requestedcurrency. (c) Any failure by a Lender or the L/C Issuer, as the case may be, torespond to such request within the time period specified in the precedingsentence shall be deemed to be a refusal by such Lender or the L/C Issuer, asthe case may be, to permit Eurocurrency Rate Loans to be made or Letters ofCredit to be issued in such requested currency. If the Administrative Agentand all the Lenders consent to making Eurocurrency Rate Loans in such requestedcurrency, the Administrative Agent shall so notify the Company and suchcurrency shall thereupon be deemed for all purposes to be an AlternativeCurrency hereunder for purposes of any Committed Borrowings of EurocurrencyRate Loans; and if the Administrative Agent and the L/C Issuer consent to theissuance of Letters of Credit in such requested currency, the AdministrativeAgent shall so notify the Company and such currency shall thereupon be deemedfor all purposes to be an Alternative Currency hereunder for purposes of anyLetter of Credit issuances. If the Administrative Agent shall fail to obtainconsent to any request for an additional currency under this Section 1.05, theAdministrative Agent shall promptly so notify the Company. 1.06 CHANGE OF CURRENCY. (a) Each obligation of the Company to make a payment denominated in thenational currency unit of any member state of the European Union that adoptsthe Euro as its lawful currency after the date hereof shall be redenominatedinto Euro at the time of such adoption (in accordance with the EMULegislation). If, in relation to the currency of any such member state, thebasis of accrual of interest expressed in this Agreement in respect of thatcurrency shall be inconsistent with any convention or practice in the Londoninterbank market for the basis of accrual of interest in respect of the Euro,such expressed basis shall be replaced by such convention or practice witheffect from the date on which such member state adopts the Euro as its lawfulcurrency; provided that if any Committed Borrowing in the currency of suchmember state is outstanding immediately prior to such date, such replacementshall take effect, with respect to such Committed Borrowing, at the end of thethen current Interest Period. (b) Each provision of this Agreement shall be subject to suchreasonable changes of construction as the Administrative Agent, with theconsent of the Company (which consent shall not be unreasonably withheld), mayfrom time to time specify to be appropriate to reflect the adoption of the Euroby any member state of the European Union and any relevant market conventionsor practices relating to the Euro. 28 (c) Each provision of this Agreement also shall be subject to suchreasonable changes of construction as the Administrative Agent, with theconsent of the Company (which consent shall not be unreasonably withheld), mayfrom time to time specify to be appropriate to reflect a change in currency ofany other country and any relevant market conventions or practices relating tothe change in currency. 1.07 ROUNDING. Any financial ratios required to be maintained by theCompany pursuant to this Agreement shall be calculated by dividing theappropriate component by the other component, carrying the result to one placemore than the number of places by which such ratio is expressed herein androunding the result up or down to the nearest number (with a rounding-up ifthere is no nearest number). 1.08 TIMES OF DAY. Unless otherwise specified, all references herein totimes of day shall be references to Central time (daylight or standard, asapplicable). 1.09 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, theamount of a Letter of Credit at any time shall be deemed to be the DollarEquivalent of the stated amount of such Letter of Credit in effect at suchtime; provided, however, that with respect to any Letter of Credit that, by itsterms or the terms of any Issuer Document related thereto, provides for one ormore automatic increases in the stated amount thereof, the amount of suchLetter of Credit shall be deemed to be the Dollar Equivalent of the maximumstated amount of such Letter of Credit after giving effect to all suchincreases, whether or not such maximum stated amount is in effect at such time. ARTICLE II THE CREDITS 2.01 COMMITTED LOANS. Subject to the terms and conditions set forthherein, each Lender severally agrees to make loans (each such loan, a”Committed Loan”) to the Company in Dollars or in one or more AlternativeCurrencies from time to time, on any Business Day during the AvailabilityPeriod, in an aggregate amount not to exceed at any time outstanding the amountof such Lender’s Commitment; provided, however, that after giving effect to anyCommitted Borrowing, (i) the Total Outstandings shall not exceed the AggregateCommitments, (ii) the aggregate Outstanding Amount of the Committed Loans ofany Lender, plus such Lender’s Applicable Percentage of the Outstanding Amountof all L/C Obligations, plus such Lender’s Applicable Percentage of theOutstanding Amount of all Swing Line Loans shall not exceed such Lender’sCommitment, and (iii) the aggregate Outstanding Amount of all Committed Loansdenominated in Alternative Currencies shall not exceed the Alternative CurrencySublimit. Within the limits of each Lender’s Commitment, and subject to theother terms and conditions hereof, the Company may borrow under this Section2.01, prepay under Section 2.06, and reborrow under this Section 2.01.Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as furtherprovided herein. 2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS. (a) Each Committed Borrowing, each conversion of Committed Loans fromone Type to the other, and each continuation of Eurocurrency Rate CommittedLoans shall be made 29upon the Company’s irrevocable notice to the Administrative Agent, which may begiven by telephone. Each such notice must be received by the AdministrativeAgent not later than 10:00 a.m. (i) three Business Days prior to the requesteddate of any Borrowing of, conversion to or continuation of Eurocurrency RateCommitted Loans denominated in Dollars or of any conversion of Eurocurrency RateCommitted Loans denominated in Dollars to Base Rate Committed Loans, (ii) fourBusiness Days (or five Business Days in the case of a Special Notice Currency)prior to the requested date of any Borrowing or continuation of EurocurrencyRate Committed Loans denominated in Alternative Currencies, and (iii) on therequested date of any Borrowing of Base Rate Committed Loans; provided, however,that if the Company wishes to request Eurocurrency Rate Committed Loans havingan Interest Period other than one, two, three or six months in duration asprovided in the definition of “Interest Period,” the applicable notice must bereceived by the Administrative Agent not later than 10:00 a.m. (i) four BusinessDays prior to the requested date of such Borrowing, conversion or continuationof Eurocurrency Rate Committed Loans denominated in Dollars, or (ii) fiveBusiness Days (or six Business Days in the case of a Special Notice Currency)prior to the requested date of such Borrowing, conversion or continuation ofEurocurrency Rate Committed Loans denominated in Alternative Currencies,whereupon the Administrative Agent shall give prompt notice to the Lenders ofsuch request and determine whether the requested Interest Period is acceptableto all of them. Not later than 10:00 a.m., (i) three Business Days before therequested date of such Borrowing, conversion or continuation of EurocurrencyRate Committed Loans denominated in Dollars, or (ii) four Business Days (or fiveBusiness Days in the case of a Special Notice Currency) prior to the requesteddate of such Borrowing, conversion or continuation of Eurocurrency RateCommitted Loans denominated in Alternative Currencies, the Administrative Agentshall notify the Company (which notice may be by telephone) whether or not therequested Interest Period has been consented to by all the Lenders. Eachtelephonic notice by the Company pursuant to this Section 2.02(a) must beconfirmed promptly by delivery to the Administrative Agent of a writtenCommitted Loan Notice, appropriately completed and signed by a ResponsibleOfficer of the Company. Each Borrowing of, conversion to or continuation ofEurocurrency Rate Committed Loans shall be in a principal amount of $3,000,000or a whole multiple of $1,000,000 in excess thereof. Except as provided inSections 2.04(c) and 2.05(c), each Borrowing of or conversion to Base RateCommitted Loans shall be in a principal amount of $1,000,000 or a whole multipleof $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic orwritten) shall specify (i) whether the Company is requesting a CommittedBorrowing, a conversion of Committed Loans from one Type to the other, or acontinuation of Eurocurrency Rate Committed Loans, (ii) the requested date ofthe Borrowing, conversion or continuation, as the case may be (which shall be aBusiness Day), (iii) the principal amount of Committed Loans to be borrowed,converted or continued, (iv) the Type of Committed Loans to be borrowed or towhich existing Committed Loans are to be converted, (v) if applicable, theduration of the Interest Period with respect thereto, and (vi) the currency ofthe Committed Loans to be borrowed. If the Company fails to specify a currencyin a Committed Loan Notice requesting a Borrowing, then the Committed Loans sorequested shall be made in Dollars. If the Company fails to specify a Type ofCommitted Loan in a Committed Loan Notice or if the Company fails to give atimely notice requesting a conversion or continuation, then the applicableCommitted Loans shall be made as, or converted to, Base Rate Loans; provided,however, that in the case of a failure to timely request a continuation ofCommitted Loans denominated in an Alternative Currency, such Loans shall becontinued as Eurocurrency Rate Loans in their original currency 30with an Interest Period of one month. Any such automatic conversion to Base RateLoans shall be effective as of the last day of the Interest Period then ineffect with respect to the applicable Eurocurrency Rate Committed Loans. If theCompany requests a Borrowing of, conversion to, or continuation of EurocurrencyRate Committed Loans in any such Committed Loan Notice, but fails to specify anInterest Period, it will be deemed to have specified an Interest Period of onemonth. No Committed Loan may be converted into or continued as a Committed Loandenominated in a different currency, but instead must be prepaid in the originalcurrency of such Committed Loan and reborrowed in the other currency. (b) Following receipt of a Committed Loan Notice, the AdministrativeAgent shall promptly notify each Lender of the amount (and currency) of itsApplicable Percentage of the applicable Committed Loans, and if no timelynotice of a conversion or continuation is provided by the Company, theAdministrative Agent shall notify each Lender of the details of any automaticconversion to Base Rate Loans or continuation of Committed Loans denominated ina currency other than Dollars, in each case as described in the precedingsubsection. In the case of a Committed Borrowing, each Lender shall make theamount of its Committed Loan available to the Administrative Agent in Same DayFunds at the Administrative Agent’s Office for the applicable currency notlater than 12:00 noon, in the case of any Committed Loan denominated inDollars, and not later than the Applicable Time specified by the AdministrativeAgent in the case of any Committed Loan in an Alternative Currency, in eachcase on the Business Day specified in the applicable Committed Loan Notice.Upon satisfaction of the applicable conditions set forth in Section 4.02 (and,if such Borrowing is the initial Credit Extension, Section 4.01), theAdministrative Agent shall make all funds so received available to the Companyin like funds as received by the Administrative Agent either by (i) creditingthe account of the Company on the books of Bank of America with the amount ofsuch funds or (ii) wire transfer of such funds, in each case in accordance withinstructions provided to (and reasonably acceptable to) the AdministrativeAgent by the Company; provided, however, that if, on the date the CommittedLoan Notice with respect to such Borrowing denominated in Dollars is given bythe Company, there are L/C Borrowings outstanding, then the proceeds of suchBorrowing, first, shall be applied to the payment in full of any such L/CBorrowings, and second, shall be made available to the Company as providedabove. (c) Except as otherwise provided herein, a Eurocurrency Rate CommittedLoan may be continued or converted only on the last day of an Interest Periodfor such Eurocurrency Rate Committed Loan. During the existence of a Default(i) without the consent of the Required Lenders, (A) no Loans denominated inDollars may be requested as, converted to or continued as Eurocurrency RateCommitted Loans and (B) no Loans denominated in an Alternative Currency may berequested as, converted to or continued as Eurocurrency Rate Committed Loans onthe basis of an Interest Period exceeding one month and (ii) the RequiredLenders may demand that any or all of the then outstanding Eurocurrency RateCommitted Loans denominated in an Alternative Currency be redenominated intoDollars in the amount of the Dollar Equivalent thereof, on the last day of thethen current Interest Period with respect thereto. (d) The Administrative Agent shall promptly notify the Company and theLenders of the interest rate applicable to any Interest Period for EurocurrencyRate Committed Loans upon determination of such interest rate. At any timethat Base Rate Loans are outstanding, the Administrative Agent shall notify theCompany and the Lenders of any change in Bank of 31America’s prime rate used in determining the Base Rate promptly following thepublic announcement of such change. (e) After giving effect to all Committed Borrowings, all conversions ofCommitted Loans from one Type to the other, and all continuations of CommittedLoans as the same Type, there shall not be more than ten Interest Periods ineffect with respect to Committed Loans. 2.03 BID LOANS. (a) General. Subject to the terms and conditions set forth herein,each Lender agrees that the Company may from time to time request the Lendersto submit offers to make loans in Dollars (each such loan, a “Bid Loan”) to theCompany prior to the Maturity Date pursuant to this Section 2.03; provided,however, that after giving effect to any Bid Borrowing, (i) the TotalOutstandings shall not exceed the Aggregate Commitments, and (ii) the aggregateOutstanding Amount of all Bid Loans shall not exceed the Bid Loan Sublimit.There shall not be more than ten different Interest Periods in effect withrespect to Bid Loans at any time. (b) Requesting Competitive Bids. The Company may request thesubmission of Competitive Bids by delivering a Bid Request to theAdministrative Agent not later than 11:00 a.m. (i) one Business Day prior tothe requested date of any Bid Borrowing that is to consist of Absolute RateLoans, or (ii) four Business Days prior to the requested date of any BidBorrowing that is to consist of Eurocurrency Margin Bid Loans. Each BidRequest shall specify (i) the requested date of the Bid Borrowing (which shallbe a Business Day), (ii) the aggregate principal amount of Bid Loans requested(which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof),(iii) the Type of Bid Loans requested, and (iv) the duration of the InterestPeriod with respect thereto, and shall be signed by a Responsible Officer ofthe Company. No Bid Request shall contain a request for (i) more than one Typeof Bid Loan or (ii) Bid Loans having more than three different InterestPeriods. Unless the Administrative Agent otherwise agrees in its sole andabsolute discretion, the Company may not submit a Bid Request if it hassubmitted another Bid Request within the prior five Business Days. (c) Submitting Competitive Bids. (i) The Administrative Agent shall promptly notify each Lender of each Bid Request received by it from the Company and the contents of such Bid Request. (ii) Each Lender may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Loans in response to such Bid Request. Such Competitive Bid must be delivered to the Administrative Agent not later than 8:30 a.m. (A) on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (B) three Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurocurrency Margin Bid Loans; provided, however, that any Competitive Bid submitted by Bank of America in its capacity as a Lender in response to any Bid Request must be submitted to the Administrative Agent not later than 8:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Lenders in response to such Bid Request. Each Competitive Bid shall specify (A) the proposed date of the Bid Borrowing; (B) the principal amount of each Bid Loan for which such 32 Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Lender, (y) must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Loans for which Competitive Bids were requested; (C) if the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans, the Absolute Rate offered for each such Bid Loan and the Interest Period applicable thereto; (D) if the proposed Bid Borrowing is to consist of Eurocurrency Margin Bid Loans, the Eurocurrency Bid Margin with respect to each such Eurocurrency Margin Bid Loan and the Interest Period applicable thereto; and (E) the identity of the bidding Lender. (iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in subsection (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Request, or (E) is otherwise not responsive to such Bid Request. Any Lender may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Administrative Agent may, but shall not be required to, notify any Lender of any manifest error it detects in such Lender’s Competitive Bid. (iv) Subject only to the provisions of Sections 3.02, 3.03 and 4.02 and subsection (iii) above, each Competitive Bid shall be irrevocable. (d) Notice to Company of Competitive Bids. Not later than 9:00 a.m.(i) on the requested date of any Bid Borrowing that is to consist of AbsoluteRate Loans, or (ii) three Business Days prior to the requested date of any BidBorrowing that is to consist of Eurocurrency Margin Bid Loans, theAdministrative Agent shall notify the Company of the identity of each Lenderthat has submitted a Competitive Bid that complies with Section 2.03(c) and ofthe terms of the offers contained in each such Competitive Bid. (e) Acceptance of Competitive Bids. Not later than 9:30 a.m. (i) onthe requested date of any Bid Borrowing that is to consist of Absolute RateLoans, and (ii) three Business Days prior to the requested date of any BidBorrowing that is to consist of Eurocurrency Margin Bid Loans, the Companyshall notify the Administrative Agent of its acceptance or rejection of theoffers notified to it pursuant to Section 2.03(d). The Company shall be underno obligation to accept any Competitive Bid and may choose to reject allCompetitive Bids. In the case of acceptance, such notice shall specify theaggregate principal amount of Competitive Bids for each Interest Period that isaccepted. The Company may accept any Competitive Bid in whole or in part;provided that: (i) the aggregate principal amount of each Bid Borrowing may not exceed the applicable amount set forth in the related Bid Request; (ii) the principal amount of each Bid Loan must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof; 33 (iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Eurocurrency Bid Margins within each Interest Period; and (iv) the Company may not accept any offer that is described in Section 2.03(c)(iii) or that otherwise fails to comply with the requirements hereof. (f) Procedure for Identical Bids. If two or more Lenders havesubmitted Competitive Bids at the same Absolute Rate or Eurocurrency BidMargin, as the case may be, for the same Interest Period, and the result ofaccepting all of such Competitive Bids in whole (together with any otherCompetitive Bids at lower Absolute Rates or Eurocurrency Bid Margins, as thecase may be, accepted for such Interest Period in conformity with therequirements of Section 2.03(e)(iii)) would be to cause the aggregateoutstanding principal amount of the applicable Bid Borrowing to exceed theamount specified therefor in the related Bid Request, then, unless otherwiseagreed by the Company, the Administrative Agent and such Lenders, suchCompetitive Bids shall be accepted as nearly as possible in proportion to theamount offered by each such Lender in respect of such Interest Period, withsuch accepted amounts being rounded to the nearest whole multiple of$1,000,000. (g) Notice to Lenders of Acceptance or Rejection of Bids. TheAdministrative Agent shall promptly notify each Lender having submitted aCompetitive Bid whether or not its offer has been accepted and, if its offerhas been accepted, of the amount of the Bid Loan or Bid Loans to be made by iton the date of the applicable Bid Borrowing. Any Competitive Bid or portionthereof that is not accepted by the Company by the applicable time specified inSection 2.03(e) shall be deemed rejected. (h) Notice of Eurocurrency Base Rate. If any Bid Borrowing is toconsist of Eurocurrency Margin Loans, the Administrative Agent shall determinethe Eurocurrency Base Rate for the relevant Interest Period, and promptly aftermaking such determination, shall notify the Company and the Lenders that willbe participating in such Bid Borrowing of such Eurocurrency Base Rate. (i) Funding of Bid Loans. Each Lender that has received noticepursuant to Section 2.03(g) that all or a portion of its Competitive Bid hasbeen accepted by the Company shall make the amount of its Bid Loan(s) availableto the Administrative Agent in immediately available funds at theAdministrative Agent’s Office not later than 12:00 noon on the date of therequested Bid Borrowing. Upon satisfaction of the applicable conditions setforth in Section 4.02, the Administrative Agent shall make all funds soreceived available to the Company in like funds as received by theAdministrative Agent. (j) Notice of Range of Bids. After each Competitive Bid auctionpursuant to this Section 2.03, the Administrative Agent shall notify eachLender that submitted a Competitive Bid in such auction of the ranges of bidssubmitted (without the bidder’s name) and accepted for each Bid Loan and theaggregate amount of each Bid Borrowing. 34 2.04 LETTERS OF CREDIT. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company 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. Each of the letters of credit outstanding on the date hereof and listed on Schedule 2.04 (the “Existing Letters of Credit”) shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. (ii) The L/C Issuer shall not issue any Letter of Credit, if: (A) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or (B) the expiry date of such requested Letter of Credit would occur after the Maturity Date, unless all the Lenders have approved such expiry date. (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any 35 Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it; (B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer; (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit; (D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency; (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; (F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or (G) a default of any Lender’s obligations to fund under Section 2.04(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Company or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender. (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof. (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative 36 Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer. (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent (A) not later than 10:00 a.m. at least two Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars, and (B) not later than 10:00 a.m. at least ten Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in an Alternative Currency (or in each case such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Company shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require. (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Company and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or the Company, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from 37 the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit. (iii) If the Company so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.04(a)(ii), 2.04(a)(iii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension. (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Company and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Company shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Company shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 10:00 a.m. on the date of any payment by the L/C 38 Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the Company shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the Company fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) Each Lender shall upon any notice pursuant to Section 2.04(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 12:00 noon on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars. (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.04. (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.04(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer. 39 (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Company or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein. (vi) If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this subsection (vi) shall be conclusive absent manifest error. (d) Repayment of Participations. (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in Dollars in the same funds as those received by the Administrative Agent. (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this 40 subsection shall survive the payment in full of the Obligations and the termination of this Agreement. (e) Obligations Absolute. The obligation of the Company to reimburse theL/C Issuer for each drawing under each Letter of Credit and to repay each L/CBorrowing shall be absolute, unconditional and irrevocable, and shall be paidstrictly 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 Loan Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (v) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Company 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 Company or any Subsidiary. The Company shall promptly examine a copy of each Letter of Credit andeach amendment thereto that is delivered to it and, in the event of any claim ofnoncompliance with the Company’s instructions or other irregularity, the Companywill immediately notify the L/C Issuer. The Company shall be conclusively deemedto have waived any such claim against the L/C Issuer and its correspondentsunless such notice is given as aforesaid. (f) Role of L/C Issuer. Each Lender and the Company agree that, in payingany drawing under a Letter of Credit, the L/C Issuer shall not have anyresponsibility to obtain any 41document (other than any sight draft, certificates and documents expresslyrequired by the Letter of Credit) or to ascertain or inquire as to the validityor accuracy of any such document or the authority of the Person executing ordelivering any such document. None of the L/C Issuer, the Administrative Agent,any of their respective Related Parties nor any correspondent, participant orassignee of the L/C Issuer shall be liable to any Lender for (i) any actiontaken or omitted in connection herewith at the request or with the approval ofthe Lenders or the Required Lenders, as applicable; (ii) any action taken oromitted in the absence of gross negligence or willful misconduct; or (iii) thedue execution, effectiveness, validity or enforceability of any document orinstrument related to any Letter of Credit or Issuer Document. The Companyhereby assumes all risks of the acts or omissions of any beneficiary ortransferee with respect to its use of any Letter of Credit; provided, however,that this assumption is not intended to, and shall not, preclude the Company’spursuing such rights and remedies as it may have against the beneficiary ortransferee at law or under any other agreement. None of the L/C Issuer, theAdministrative Agent, any of their respective Related Parties nor anycorrespondent, participant or assignee of the L/C Issuer shall be liable orresponsible for any of the matters described in Section 2.04(e)(i) through (vi);provided, however, that anything in such clauses to the contrarynotwithstanding, the Company may have a claim against the L/C Issuer, and theL/C Issuer may be liable to the Company, to the extent, but only to the extent,of any direct, as opposed to consequential or exemplary, damages suffered by theCompany which the Company proves were caused by the L/C Issuer’s willfulmisconduct or gross negligence or the L/C Issuer’s willful failure to pay underany Letter of Credit after the presentation to it by the beneficiary of a sightdraft and certificate(s) strictly complying with the terms and conditions of aLetter of Credit. In furtherance and not in limitation of the foregoing, the L/CIssuer may accept documents that appear on their face to be in order, withoutresponsibility for further investigation, regardless of any notice orinformation to the contrary, and the L/C Issuer shall not be responsible for thevalidity or sufficiency of any instrument transferring or assigning orpurporting to transfer or assign a Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, which may prove to beinvalid or ineffective for any reason. (g) Cash Collateral. Upon the request of the Administrative Agent, (i) ifthe L/C Issuer has honored any full or partial drawing request under any Letterof Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as ofthe Letter of Credit Expiration Date, any L/C Obligation for any reason remainsoutstanding, the Company shall, in each case, immediately Cash Collateralize thethen Outstanding Amount of all L/C Obligations. Sections 2.06 and 8.02(c) setforth certain additional requirements to deliver Cash Collateral hereunder. Forpurposes of this Section 2.04, Section 2.06 and Section 8.02(c), “CashCollateralize” means to pledge and deposit with or deliver to the AdministrativeAgent, for the benefit of the L/C Issuer and the Lenders, as collateral for theL/C Obligations, cash or deposit account balances pursuant to documentation inform and substance satisfactory to the Administrative Agent and the L/C Issuer(which documents are hereby consented to by the Lenders). Derivatives of suchterm have corresponding meanings. The Company hereby grants to theAdministrative Agent, for the benefit of the L/C Issuer and the Lenders, asecurity interest in all such cash, deposit accounts and all balances thereinand all proceeds of the foregoing. Cash Collateral shall be maintained inblocked, non-interest bearing deposit accounts at Bank of America. (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by theL/C Issuer and the Company when a Letter of Credit is issued (including any suchagreement 42applicable to an Existing Letter of Credit), (i) the rules of the ISP shallapply to each standby Letter of Credit, and (ii) the rules of the UniformCustoms and Practice for Documentary Credits, as most recently published by theInternational Chamber of Commerce at the time of issuance shall apply to eachcommercial Letter of Credit. (i) Letter of Credit Fees. The Company shall pay to the AdministrativeAgent for the account of each Lender in accordance with its ApplicablePercentage a Letter of Credit fee (the “Letter of Credit Fee”) (i) for eachcommercial Letter of Credit equal to 50% times the Applicable Rate times theDollar Equivalent of the daily amount available to be drawn under such Letter ofCredit, and (ii) for each standby Letter of Credit equal to the Applicable Ratetimes the Dollar Equivalent of the daily amount available to be drawn under suchLetter of Credit. For purposes of computing the daily amount available to bedrawn under any Letter of Credit, the amount of such Letter of Credit shall bedetermined in accordance with Section 1.09. Letter of Credit Fees shall be (i)computed on a quarterly basis in arrears and (ii) due and payable on the firstBusiness Day after the end of each March, June, September and December,commencing with the first such date to occur after the issuance of such Letterof Credit, on the Letter of Credit Expiration Date and thereafter on demand. Ifthere is any change in the Applicable Rate during any quarter, the daily amountavailable to be drawn under each Letter of Credit shall be computed andmultiplied by the Applicable Rate or 50% of such Applicable Rate, as the casemay be, separately for each period during such quarter that such Applicable Ratewas in effect. (j) Fronting Fee and Documentary and Processing Charges Payable to L/CIssuer. The Company shall pay directly to the L/C Issuer for its own account, inDollars, a fronting fee (i) with respect to each commercial Letter of Credit, atthe rate specified in the BofA Fee Letter, computed on the Dollar Equivalent ofthe amount of such Letter of Credit, and payable upon the issuance thereof, (ii)with respect to any amendment of a commercial Letter of Credit increasing theamount of such Letter of Credit, at a rate separately agreed between the Companyand the L/C Issuer, computed on the Dollar Equivalent of the amount of suchincrease, and payable upon the effectiveness of such amendment, and (iii) withrespect to each standby Letter of Credit, at the rate per annum specified in theBofA Fee Letter, computed on the Dollar Equivalent of the daily amount availableto be drawn under such Letter of Credit on a quarterly basis in arrears, and dueand payable on the first Business Day after the end of each March, June,September and December, commencing with the first such date to occur after theissuance of such Letter of Credit, on the Letter of Credit Expiration Date andthereafter on demand. For purposes of computing the daily amount available to bedrawn under any Letter of Credit, the amount of such Letter of Credit shall bedetermined in accordance with Section 1.09. In addition, the Company shall paydirectly to the L/C Issuer for its own account, in Dollars, the customaryissuance, presentation, amendment and other processing fees, and other standardcosts and charges, of the L/C Issuer relating to letters of credit as from timeto time in effect. Such customary fees and standard costs and charges are dueand payable on demand and are nonrefundable. (k) Conflict with Issuer Documents. In the event of any conflict betweenthe terms hereof and the terms of any Issuer Document, the terms hereof shallcontrol. 43 2.05 SWING LINE LOANS. (a) The Swing Line. Subject to the terms and conditions set forth herein,the Swing Line Lender agrees, in reliance upon the agreements of the otherLenders set forth in this Section 2.05, to make loans (each such loan, a “SwingLine Loan”) to the Company from time to time on any Business Day during theAvailability Period in an aggregate amount not to exceed at any time outstandingthe amount of the Swing Line Sublimit, notwithstanding the fact that such SwingLine Loans, when aggregated with the Applicable Percentage of the OutstandingAmount of Committed Loans and L/C Obligations of the Lender acting as Swing LineLender, may exceed the amount of such Lender’s Commitment; provided, however,that after giving effect to any Swing Line Loan, (i) the Total Outstandingsshall not exceed the Aggregate Commitments, and (ii) the aggregate OutstandingAmount of the Committed Loans of any Lender, plus such Lender’s ApplicablePercentage of the Outstanding Amount of all L/C Obligations, plus such Lender’sApplicable Percentage of the Outstanding Amount of all Swing Line Loans shallnot exceed such Lender’s Commitment, and provided, further, that the Companyshall not use the proceeds of any Swing Line Loan to refinance any outstandingSwing Line Loan. Within the foregoing limits, and subject to the other terms andconditions hereof, the Company may borrow under this Section 2.05, prepay underSection 2.06, and reborrow under this Section 2.05. Each Swing Line Loan shallbe a Base Rate Loan. Immediately upon the making of a Swing Line Loan, eachLender shall be deemed to, and hereby irrevocably and unconditionally agrees to,purchase from the Swing Line Lender a risk participation in such Swing Line Loanin an amount equal to the product of such Lender’s Applicable Percentage timesthe amount of such Swing Line Loan. (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon theCompany’s irrevocable notice to the Swing Line Lender and the AdministrativeAgent, which may be given by telephone. Each such notice must be received by theSwing Line Lender and the Administrative Agent not later than 12:00 noon on therequested borrowing date, and shall specify (i) the amount to be borrowed, whichshall be in a minimum amount of $1,000,000, and (ii) the requested borrowingdate, which shall be a Business Day. Each such telephonic notice must beconfirmed promptly by delivery to the Swing Line Lender and the AdministrativeAgent of a written Swing Line Loan Notice, appropriately completed and signed bya Responsible Officer of the Company. Promptly after receipt by the Swing LineLender of any telephonic Swing Line Loan Notice, the Swing Line Lender willconfirm with the Administrative Agent (by telephone or in writing) that theAdministrative Agent has also received such Swing Line Loan Notice and, if not,the Swing Line Lender will notify the Administrative Agent (by telephone or inwriting) of the contents thereof. Unless the Swing Line Lender has receivednotice (by telephone or in writing) from the Administrative Agent (including atthe request of any Lender) prior to 1:00 p.m. on the date of the proposed SwingLine Borrowing (A) directing the Swing Line Lender not to make such Swing LineLoan as a result of the limitations set forth in the proviso to the firstsentence of Section 2.05(a), or (B) that one or more of the applicableconditions specified in Article IV is not then satisfied, then, subject to theterms and conditions hereof, the Swing Line Lender will, not later than 2:00p.m. on the borrowing date specified in such Swing Line Loan Notice, make theamount of its Swing Line Loan available to the Company at its office bycrediting the account of the Company on the books of the Swing Line Lender inSame Day Funds. 44 (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 12:00 noon on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect of such participation. (iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this subsection (iii) shall be conclusive absent manifest error. (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.05(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, 45 event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein. (d) Repayment of Participations. (i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender. (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shallbe responsible for invoicing the Company for interest on the Swing Line Loans.Until each Lender funds its Base Rate Committed Loan or risk participationpursuant to this Section 2.05 to refinance such Lender’s Applicable Percentageof any Swing Line Loan, interest in respect of such Applicable Percentage shallbe solely for the account of the Swing Line Lender. (f) Payments Directly to Swing Line Lender. The Company shall make allpayments of principal and interest in respect of the Swing Line Loans directlyto the Swing Line Lender. 2.6 PREPAYMENTS. (a) The Company may, upon notice to the Administrative Agent, at any timeor from time to time voluntarily prepay Committed Loans in whole or in partwithout premium or penalty; provided that (i) such notice must be received bythe Administrative Agent not later than 10:00 a.m. (A) three Business Days priorto any date of prepayment of Eurocurrency Rate Committed Loans denominated inDollars, (B) four Business Days (or five, in the case of prepayment of Loansdenominated in Special Notice Currencies) prior to any date of prepayment ofEurocurrency Rate Committed Loans denominated in Alternative Currencies, and (C)on the date of prepayment of Base Rate Committed Loans; (ii) any prepaymentshall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000in excess thereof or, if less, the entire principal amount thereof thenoutstanding. Each such notice shall specify the date and amount of 46such prepayment and the Type(s) of Committed Loans to be prepaid and, ifEurocurrency Loans are to be prepaid, the Interest Period(s) of such Loans. TheAdministrative Agent will promptly notify each Lender of its receipt of eachsuch notice, and of the amount of such Lender’s Applicable Percentage of suchprepayment. If such notice is given by the Company, the Company shall make suchprepayment and the payment amount specified in such notice shall be due andpayable on the date specified therein. Any prepayment of a Eurocurrency RateLoan shall be accompanied by all accrued interest on the amount prepaid,together with any additional amounts required pursuant to Section 3.05. Eachsuch prepayment shall be applied to the Committed Loans of the Lenders inaccordance with their respective Applicable Percentages. (b) No Bid Loan may be prepaid without the prior consent of the applicableBid Loan Lender. (c) The Company may, upon notice to the Swing Line Lender (with a copy tothe Administrative Agent), at any time or from time to time, voluntarily prepaySwing Line Loans in whole or in part without premium or penalty; provided that(i) such notice must be received by the Swing Line Lender and the AdministrativeAgent not later than 12:00 noon on the date of the prepayment, and (ii) any suchprepayment shall be in a minimum principal amount of $1,000,000 or a wholemultiple of $1,000,000 in excess thereof. Each such notice shall specify thedate and amount of such prepayment. If such notice is given by the Company, theCompany shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein. (d) If the Administrative Agent notifies the Company at any time that theTotal Outstandings at such time exceed an amount equal to 105% of the AggregateCommitments then in effect, then, within two Business Days after receipt of suchnotice, the Company shall prepay Loans and/or the Company shall CashCollateralize the L/C Obligations in an aggregate amount sufficient to reducesuch Outstanding Amount as of such date of payment to an amount not to exceed100% of the Aggregate Commitments then in effect; provided, however, that,subject to the provisions of Section 2.04(g)(ii), the Company shall not berequired to Cash Collateralize the L/C Obligations pursuant to this Section2.06(d) unless after the prepayment in full of the Loans the Total Outstandingsexceed the Aggregate Commitments then in effect. The Administrative Agent may,at any time and from time to time after the initial deposit of such CashCollateral, request that additional Cash Collateral be provided in order toprotect against the results of further exchange rate fluctuations. (e) If the Administrative Agent notifies the Company at any time that theOutstanding Amount of all Loans denominated in Alternative Currencies at suchtime exceeds an amount equal to 105% of the Alternative Currency Sublimit thenin effect, then, within two Business Days after receipt of such notice, theCompany shall prepay Loans in an aggregate amount sufficient to reduce suchOutstanding Amount as of such date of payment to an amount not to exceed 100% ofthe Alternative Currency Sublimit then in effect. 2.07 TERMINATION OR REDUCTION OF COMMITMENTS. The Company may, upon noticeto the Administrative Agent, terminate the Aggregate Commitments, or from timeto time permanently reduce the Aggregate Commitments; provided that (i) any suchnotice shall be received by the Administrative Agent not later than 10:00 a.m.three Business Days prior to the 47date of termination or reduction, (ii) any such partial reduction shall be in anaggregate amount of $3,000,000 or any whole multiple of $1,000,000 in excessthereof, (iii) the Company shall not terminate or reduce the AggregateCommitments if, after giving effect thereto and to any concurrent prepaymentshereunder, the Total Outstandings would exceed the Aggregate Commitments, and(iv) if, after giving effect to any reduction of the Aggregate Commitments, theAlternative Currency Sublimit, the Bid Loan Sublimit, the Letter of CreditSublimit or the Swing Line Sublimit exceeds the amount of the AggregateCommitments, such Sublimit shall be automatically reduced by the amount of suchexcess. The Administrative Agent will promptly notify the Lenders of any suchnotice of termination or reduction of the Aggregate Commitments. The amount ofany such Aggregate Commitment reduction shall not be applied to the AlternativeCurrency Sublimit or the Letter of Credit Sublimit unless otherwise specified bythe Company. Any reduction of the Aggregate Commitments shall be applied to theCommitment of each Lender according to its Applicable Percentage. All feesaccrued until the effective date of any termination of the Aggregate Commitmentsshall be paid on the effective date of such termination. 2.08 REPAYMENT OF LOANS. (a) The Company shall repay to the Lenders on the Maturity Date theaggregate principal amount of Committed Loans outstanding on such date. (b) The Company shall repay each Bid Loan on the last day of the InterestPeriod in respect thereof. (c) The Company shall repay each Swing Line Loan on the earlier to occurof (i) the date ten Business Days after such Loan is made and (ii) the MaturityDate. 2.09 INTEREST. (a) Subject to the provisions of subsection (b) below, (i) eachEurocurrency Rate Committed Loan shall bear interest on the outstandingprincipal amount thereof for each Interest Period at a rate per annum equal tothe Eurocurrency Rate for such Interest Period plus the Applicable Rate plus (inthe case of a Eurocurrency Rate Loan of any Lender which is lent from a LendingOffice in the United Kingdom or a Participating Member State) the MandatoryCost; (ii) each Base Rate Committed Loan shall bear interest on the outstandingprincipal amount thereof from the applicable borrowing date at a rate per annumequal to the Base Rate plus the Applicable Rate; (iii) each Bid Loan shall bearinterest on the outstanding principal amount thereof for the Interest Periodtherefor at a rate per annum equal to the Eurocurrency Rate for such InterestPeriod plus (or minus) the Eurocurrency Bid Margin, or at the Absolute Rate forsuch Interest Period, as the case may be; and (iv) each Swing Line Loan shallbear interest on the outstanding principal amount thereof from the applicableborrowing date at a rate per annum equal to the Base Rate plus the ApplicableRate. (b) (i) If any amount of principal of any Loan is not paid when due(without regard to any applicable grace periods), whether at stated maturity, byacceleration or otherwise, such amount shall thereafter bear interest at afluctuating interest rate per annum at all times equal to the Default Rate tothe fullest extent permitted by applicable Laws. 48 (ii) If any amount (other than principal of any Loan) payable by the Company under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on eachInterest Payment Date applicable thereto and at such other times as may bespecified herein. Interest hereunder shall be due and payable in accordance withthe terms hereof before and after judgment, and before and after thecommencement of any proceeding under any Debtor Relief Law. 2.10 FEES. In addition to certain fees described in Sections 2.04(i) and(j): (a) Facility Fee. The Company shall pay to the Administrative Agent forthe account of each Lender in accordance with its Applicable Percentage, afacility fee in Dollars equal to the Applicable Rate times the actual dailyamount of the Aggregate Commitments (or, if the Aggregate Commitments haveterminated, on the Outstanding Amount of all Committed Loans, Swing Line Loansand L/C Obligations), regardless of usage. The facility fee shall accrue at alltimes during the Availability Period (and thereafter so long as any CommittedLoans, Swing Line Loans or L/C Obligations remain outstanding), including at anytime during which one or more of the conditions in Article IV is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such date tooccur after the Closing Date, and on the Maturity Date (and, if applicable,thereafter on demand). The facility fee shall be calculated quarterly inarrears, and if there is any change in the Applicable Rate during any quarter,the actual daily amount shall be computed and multiplied by the Applicable Rateseparately for each period during such quarter that such Applicable Rate was ineffect. (b) Other Fees. The Company shall pay to the Arrangers and theAdministrative Agent, in Dollars, fees in the amounts and at the times specifiedin the Fee Letters, which fees shall be for the respective accounts of theAdministrative Agent, Arrangers and the Lenders as specified in the Fee Letters.Such fees shall be fully earned when paid and shall not be refundable for anyreason whatsoever. 2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest forBase Rate Loans when the Base Rate is determined by Bank of America’s “primerate” shall be made on the basis of a year of 365 or 366 days, as the case maybe, and actual days elapsed. All other computations of fees and interest shallbe made on the basis of a 360-day year and actual days elapsed (which results inmore fees or interest, as applicable, being paid than if computed on the basisof a 365-day year), or, in the case of interest in respect of Committed Loansdenominated in Alternative Currencies as to which market practice differs fromthe foregoing, in accordance with such market practice. Interest shall accrue oneach Loan for the day on which the Loan is 49made, and shall not accrue on a Loan, or any portion thereof, for the day onwhich the Loan or such portion is paid, provided that any Loan that is repaid onthe same day on which it is made shall, subject to Section 2.13(a), bearinterest for one day. Each determination by the Administrative Agent of aninterest rate or fee hereunder shall be conclusive and binding for all purposes,absent manifest error. 2.12 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender shall be evidenced by one ormore accounts or records maintained by such Lender and by the AdministrativeAgent in the ordinary course of business. The accounts or records maintained bythe Administrative Agent and each Lender shall be conclusive absent manifesterror of the amount of the Credit Extensions made by the Lenders to the Companyand the interest and payments thereon. Any failure to so record or any error indoing so shall not, however, limit or otherwise affect the obligation of theCompany hereunder to pay any amount owing with respect to the Obligations. Inthe event of any conflict between the accounts and records maintained by anyLender and the accounts and records of the Administrative Agent in respect ofsuch matters, the accounts and records of the Administrative Agent shall controlin the absence of manifest error. Upon the request of any Lender made throughthe Administrative Agent, the Company shall execute and deliver to such Lender(through the Administrative Agent) a Note, which shall evidence such Lender’sLoans in addition to such accounts or records. Each Lender may attach schedulesto its Note and endorse thereon the date, Type (if applicable), amount andmaturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in subsection (a),each Lender and the Administrative Agent shall maintain in accordance with itsusual practice accounts or records evidencing the purchases and sales by suchLender of participations in Letters of Credit and Swing Line Loans. In the eventof any conflict between the accounts and records maintained by theAdministrative Agent and the accounts and records of any Lender in respect ofsuch matters, the accounts and records of the Administrative Agent shall controlin the absence of manifest error. 2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT’S CLAWBACK. (a) General. All payments to be made by the Company shall be made withoutcondition or deduction for any counterclaim, defense, recoupment or setoff.Except as otherwise expressly provided herein and except with respect toprincipal of and interest on Loans denominated in an Alternative Currency, allpayments by the Company hereunder shall be made to the Administrative Agent, forthe account of the respective Lenders to which such payment is owed, at theapplicable Administrative Agent’s Office in Dollars and in Same Day Funds notlater than 1:00 p.m. on the date specified herein. Except as otherwise expresslyprovided herein, all payments by the Company hereunder with respect to principaland interest on Loans denominated in an Alternative Currency shall be made tothe Administrative Agent, for the account of the respective Lenders to whichsuch payment is owed, at the applicable Administrative Agent’s Office in suchAlternative Currency and in Same Day Funds not later than the Applicable Timespecified by the Administrative Agent on the dates specified herein. Withoutlimiting the generality of the foregoing, the Administrative Agent may requirethat any 50payments due under this Agreement be made in the United States. If, for anyreason, the Company is prohibited by any Law from making any required paymenthereunder in an Alternative Currency, the Company shall make such payment inDollars in the Dollar Equivalent of the Alternative Currency payment amount. TheAdministrative Agent will promptly distribute to each Lender its ApplicablePercentage (or other applicable share as provided herein) of such payment inlike funds as received by wire transfer to such Lender’s Lending Office. Allpayments received by the Administrative Agent (i) after 1:00 p.m., in the caseof payments in Dollars, or (ii) after the Applicable Time specified by theAdministrative Agent in the case of payments in an Alternative Currency, shallin each case be deemed received on the next succeeding Business Day and anyapplicable interest or fee shall continue to accrue. If any payment to be madeby the Company shall come due on a day other than a Business Day, payment shallbe made on the next following Business Day, and such extension of time shall bereflected in computing interest or fees, as the case may be. (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unlessthe Administrative Agent shall have received notice from a Lender prior to theproposed date of any Committed Borrowing that such Lender will not makeavailable to the Administrative Agent such Lender’s share of such CommittedBorrowing, the Administrative Agent may assume that such Lender has made suchshare available on such date in accordance with Section 2.02 and may, inreliance upon such assumption, make available to the Company a correspondingamount. In such event, if a Lender has not in fact made its share of theapplicable Committed Borrowing available to the Administrative Agent, then theapplicable Lender and the Company severally agree to pay to the AdministrativeAgent forthwith on demand such corresponding amount in Same Day Funds withinterest thereon, for each day from and including the date such amount is madeavailable to the Company to but excluding the date of payment to theAdministrative Agent, at (A) in the case of a payment to be made by such Lender,the Overnight Rate and (B) in the case of a payment to be made by the Company,the interest rate applicable to Base Rate Loans. If the Company and such Lendershall pay such interest to the Administrative Agent for the same or anoverlapping period, the Administrative Agent shall promptly remit to the Companythe amount of such interest paid by the Company for such period. If such Lenderpays its share of the applicable Committed Borrowing to the AdministrativeAgent, then the amount so paid shall constitute such Lender’s Committed Loanincluded in such Committed Borrowing. Any payment by the Company shall bewithout prejudice to any claim the Company may have against a Lender that shallhave failed to make such payment to the Administrative Agent. (ii) Payments by Company; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Company prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Company will not make such payment, the Administrative Agent may assume that the Company has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Company has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed 51 to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate. A notice of the Administrative Agent to any Lender or the Company withrespect to any amount owing under this subsection (b) shall be conclusive,absent manifest error. (c) Failure to Satisfy Conditions Precedent. If any Lender makes availableto the Administrative Agent funds for any Loan to be made by such Lender asprovided in the foregoing provisions of this Article II, and such funds are notmade available to the Company by the Administrative Agent because the conditionsto the applicable Credit Extension set forth in Article IV are not satisfied orwaived in accordance with the terms hereof, the Administrative Agent shallreturn such funds (in like funds as received from such Lender) to such Lender,without interest. (d) Obligations of Lenders Several. The obligations of the Lendershereunder to make Committed Loans, to fund participations in Letters of Creditand Swing Line Loans and to make payments pursuant to Section 10.04(c) areseveral and not joint. The failure of any Lender to make any Committed Loan, tofund any such participation or to make any payment under Section 10.04(c) on anydate required hereunder shall not relieve any other Lender of its correspondingobligation to do so on such date, and no Lender shall be responsible for thefailure of any other Lender to so make its Committed Loan, to purchase itsparticipation or to make its payment under Section 10.04(c). (e) Funding Source. Nothing herein shall be deemed to obligate any Lenderto obtain the funds for any Loan in any particular place or manner or toconstitute a representation by any Lender that it has obtained or will obtainthe funds for any Loan in any particular place or manner. 2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercisingany right of setoff or counterclaim or otherwise, obtain payment in respect ofany principal of or interest on any of the Committed Loans made by it, or theparticipations in L/C Obligations or in Swing Line Loans held by it resulting insuch Lender’s receiving payment of a proportion of the aggregate amount of suchCommitted Loans or participations and accrued interest thereon greater than itspro rata share thereof as provided herein, then the Lender receiving suchgreater proportion shall (a) notify the Administrative Agent of such fact, and(b) purchase (for cash at face value) participations in the Committed Loans andsubparticipations in L/C Obligations and Swing Line Loans of the other Lenders,or make such other adjustments as shall be equitable, so that the benefit of allsuch payments shall be shared by the Lenders ratably in accordance with theaggregate amount of principal of and accrued interest on their respectiveCommitted Loans and other amounts owing them, provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and 52 (ii) the provisions of this Section shall not be construed to apply to (x) any payment made by the Company pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Company consents to the foregoing and agrees, to the extent it mayeffectively do so under applicable law, that any Lender acquiring aparticipation pursuant to the foregoing arrangements may exercise against theCompany rights of setoff and counterclaim with respect to such participation asfully as if such Lender were a direct creditor of the Company in the amount ofsuch participation. 2.15 INCREASE IN COMMITMENTS. (a) Request for Increase. Provided there exists no Default, upon notice tothe Administrative Agent (which shall promptly notify the Lenders), the Companymay from time to time, but no more than two times in any year, request anincrease in the Aggregate Commitments by an amount (for all such requests) notexceeding $100,000,000; provided that any such request for an increase shall bein a minimum amount of $20,000,000. At the time of sending such notice, theCompany (in consultation with the Administrative Agent) shall specify the timeperiod within which each Lender is requested to respond (which shall in no eventbe less than ten Business Days from the date of delivery of such notice to theLenders). (b) Lender Elections to Increase. Each Lender shall notify theAdministrative Agent within such time period whether or not it agrees toincrease its Commitment and, if so, whether by an amount equal to, greater than,or less than its Applicable Percentage of such requested increase. Any Lendernot responding within such time period shall be deemed to have declined toincrease its Commitment. (c) Notification by Administrative Agent; Additional Lenders. TheAdministrative Agent shall notify the Company and each Lender of the Lenders’responses to each request made hereunder. If the Lenders do not agree to thefull amount of a requested increase, subject to the approval of theAdministrative Agent and the L/C Issuer (which approvals shall not beunreasonably withheld), the Company may also invite additional EligibleAssignees to become Lenders pursuant to a joinder agreement in form andsubstance satisfactory to the Administrative Agent and its counsel. (d) Effective Date and Allocations. If the Aggregate Commitments areincreased in accordance with this Section, the Administrative Agent and theCompany shall determine the effective date (the “Increase Effective Date”) andthe final allocation of such increase. The Administrative Agent shall promptlynotify the Company and the Lenders of the final allocation of such increase andthe Increase Effective Date. (e) Conditions to Effectiveness of Increase. As a condition precedent tosuch increase, the Company shall deliver to the Administrative Agent acertificate dated as of the 53Increase Effective Date (in sufficient copies for each Lender) signed by aResponsible Officer of the Company (i) certifying and attaching the resolutionsadopted by the Company approving or consenting to such increase, and (ii)certifying that, before and after giving effect to such increase, (A) therepresentations and warranties contained in Article V and the other LoanDocuments are true and correct on and as of the Increase Effective Date, exceptto the extent that such representations and warranties specifically refer to anearlier date, in which case they are true and correct as of such earlier date,and except that for purposes of this Section 2.15, the representations andwarranties contained in Section 5.11(a) shall be deemed to refer to the mostrecent statements furnished pursuant to Sections 6.01(a) and 6.01(b), and (B) noDefault exists. The Company shall prepay any Committed Loans outstanding on theIncrease Effective Date (and pay any additional amounts required pursuant toSection 3.05) to the extent necessary to keep the outstanding Committed Loansratable with any revised Applicable Percentages arising from any nonratableincrease in the Commitments under this Section. (f) Conflicting Provisions. This Section shall supersede any provisions inSections 2.14 or 10.01 to the contrary. ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 TAXES. (a) Payments Free of Taxes. Any and all payments by or on account of anyobligation of the Company hereunder or under any other Loan Document shall bemade free and clear of and without reduction or withholding for any IndemnifiedTaxes or Other Taxes, provided that if the Company shall be required byapplicable law to deduct any Indemnified Taxes (including any Other Taxes) fromsuch payments, then (i) the sum payable shall be increased as necessary so thatafter making all required deductions (including deductions applicable toadditional sums payable under this Section) the Administrative Agent, Lender orL/C Issuer, as the case may be, receives an amount equal to the sum it wouldhave received had no such deductions been made, (ii) the Company shall make suchdeductions and (iii) the Company shall timely pay the full amount deducted tothe relevant Governmental Authority in accordance with applicable law. (b) Payment of Other Taxes by the Company. Without limiting the provisionsof subsection (a) above, the Company shall timely pay any Other Taxes to therelevant Governmental Authority in accordance with applicable law. (c) Indemnification by the Company. The Company shall indemnify theAdministrative Agent, each Lender and the L/C Issuer, within 30 days afterwritten demand (accompanied by appropriate documentation) therefor, for the fullamount of any Indemnified Taxes or Other Taxes (including Taxes imposed orasserted on or attributable to amounts payable under this Section but only tothe extent necessary to preserve the after-tax yield the Lender would havereceived if such Indemnified Taxes or Other Taxes or Taxes imposed thereon hadnot been imposed) paid by the Administrative Agent, such Lender or the L/CIssuer, as the case may be, whether or not such Indemnified Taxes or Other Taxeswere correctly or legally imposed or asserted by the relevant GovernmentalAuthority. 54 (d) Evidence of Payments. As soon as practicable after any payment ofIndemnified Taxes or Other Taxes by the Company to a Governmental Authority, theCompany shall deliver to the Administrative Agent the original or a certifiedcopy of a receipt issued by such Governmental Authority evidencing such paymentor other evidence of such payment reasonably satisfactory to the AdministrativeAgent. (e) Status of Lenders. Each Foreign Lender shall deliver to the Companyand the Administrative Agent (in such number of copies as shall be requested bythe recipient) on or prior to the date on which such Foreign Lender becomes aLender under this Agreement (and from time to time thereafter upon the requestof the Company or the Administrative Agent, but only if such Foreign Lender islegally entitled to do so), whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, (ii) duly completed copies of Internal Revenue Service Form W- 8ECI, (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or (iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Company to determine the withholding or deduction required to be made. Each Lender (other than a Lender that is a corporation for U.S. federalincome tax purposes) that is not a Foreign Lender shall on or before the datesuch Lender becomes a Lender under this Agreement provide to the Company (with acopy to the Administrative Agent) a duly completed copy of Internal RevenueService Form W-9. If any Foreign Lender sells, assigns, grants a participation in, orotherwise ceases to be the beneficial owner of any portion of its Loans, suchForeign Lender shall deliver to the Administrative Agent a revised duly executedIRS Form W-8BEN or IRS Form W-8ECI (or successor or replacement forms)reflecting the portion of the Loans the Foreign Lender has retained and a dulyexecuted W-8IMY (or successor or replacement form), including requiredattachments, reflecting the portion of its Loans sold. If such Person fails todeliver the above forms or other documentation, then the Administrative Agentmay withhold from any interest payment to such Person an amount equivalent tothe applicable withholding tax imposed by Sections 1441 and 1442 of the Code,without reduction, and such Person may not collect any such payments from theCompany. If any Governmental Authority asserts that the Administrative Agent didnot properly withhold any tax or other amount from payments made in 55respect of such Person, such Person shall indemnify the Administrative Agenttherefor, including all penalties and interest, any taxes imposed by anyjurisdiction on the amounts payable to the Administrative Agent under thisSection, and costs and expenses (including all reasonable out-of-pocket fees anddisbursements of any law firm or other external counsel, the allocated costs ofinternal legal services and all disbursements of internal counsel) of theAdministrative Agent. The obligation of the Lenders under this paragraph shallsurvive the termination of this Agreement, repayment of all Loans and theresignation or replacement of the Administrative Agent. Without limiting the obligations of the Lenders set forth above regardingdelivery of certain forms and documents to establish each Lender’s status forU.S. withholding tax purposes, each Lender agrees promptly to deliver to theAdministrative Agent or the Company, as the Administrative Agent or the Companyshall reasonably request, on or prior to the Closing Date, and in a timelyfashion thereafter, such other documents and forms required by any relevanttaxing authorities under the Laws of any other jurisdiction, duly executed andcompleted by such Lender, as are required under such Laws to confirm suchLender’s entitlement to any available exemption from, or reduction of,applicable withholding taxes in respect of all payments to be made to suchLender outside of the U.S. by the Company pursuant to this Agreement orotherwise to establish such Lender’s status for withholding tax purposes in suchother jurisdiction. Each Lender shall promptly (i) notify the AdministrativeAgent of any change in circumstances which would modify or render invalid anysuch claimed exemption or reduction, and (ii) take such steps as shall not bematerially disadvantageous to it, in the reasonable judgment of such Lender, andas may be reasonably necessary (including the re- designation of its LendingOffice) to avoid any requirement of applicable Laws of any such jurisdictionthat the Company make any deduction or withholding for taxes from amountspayable to such Lender. Additionally, the Company shall promptly deliver to theAdministrative Agent or any Lender, as the Administrative Agent or such Lendershall reasonably request, on or prior to the Closing Date, and in a timelyfashion thereafter, such documents and forms required by any relevant taxingauthorities under the Laws of any jurisdiction, duly executed and completed bythe Company, as are required to be furnished by such Lender or theAdministrative Agent under such Laws in connection with any payment by theAdministrative Agent or any Lender of Taxes or Other Taxes, or otherwise inconnection with the Loan Documents, with respect to such jurisdiction. (f) Treatment of Certain Refunds. If the Administrative Agent, any Lenderor the L/C Issuer determines, in its sole discretion, that it has received arefund of any Indemnified Taxes or Other Taxes as to which it has beenindemnified by the Company or with respect to which the Company has paidadditional amounts pursuant to this Section, it shall pay to the Company anamount equal to such refund (but only to the extent of indemnity payments made,or additional amounts paid, by the Company under this Section with respect tothe Indemnified Taxes or Other Taxes giving rise to such refund), net of allout-of-pocket expenses of the Administrative Agent, such Lender or the L/CIssuer, as the case may be, and without interest (other than any interest paidby the relevant Governmental Authority with respect to such refund), providedthat the Company, upon the request of the Administrative Agent, such Lender orthe L/C Issuer, agrees to repay the amount paid over to the Company (plus anypenalties, interest or other charges imposed by the relevant GovernmentalAuthority) to the Administrative Agent, such Lender or the L/C Issuer in theevent the Administrative Agent, such Lender or the 56L/C Issuer is required to repay such refund to such Governmental Authority. Thissubsection shall not be construed to require the Administrative Agent, anyLender or the L/C Issuer to make available its tax returns (or any otherinformation relating to its taxes that it deems confidential) to the Company orany other Person. 3.02 ILLEGALITY. If any Lender determines that any Law has made itunlawful, or that any Governmental Authority has asserted that it is unlawful,for any Lender or its applicable Lending Office to make, maintain or fundEurocurrency Rate Loans (whether denominated in Dollars or an AlternativeCurrency), or to determine or charge interest rates based upon the EurocurrencyRate, or any Governmental Authority has imposed material restrictions on theauthority of such Lender to purchase or sell, or to take deposits of, Dollars orany Alternative Currency in the applicable interbank market, then, on noticethereof by such Lender to the Company through the Administrative Agent, anyobligation of such Lender to make or continue Eurocurrency Rate Loans in theaffected currency or currencies or, in the case of Eurocurrency Rate Loans inDollars to convert Base Rate Committed Loans to Eurocurrency Rate CommittedLoans shall be suspended until such Lender notifies the Administrative Agent andthe Company that the circumstances giving rise to such determination no longerexist. Upon receipt of such notice, the Company shall, upon demand from suchLender (with a copy to the Administrative Agent), prepay or, if applicable andsuch Loans are denominated in Dollars, convert all Eurocurrency Rate Loans ofsuch Lender to Base Rate Loans, either on the last day of the Interest Periodtherefor, if such Lender may lawfully continue to maintain such EurocurrencyRate Loans to such day, or immediately, if such Lender may not lawfully continueto maintain such Eurocurrency Rate Loans. Upon any such prepayment orconversion, the Company shall also pay accrued interest on the amount so prepaidor converted. 3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine thatfor any reason in connection with any request for a Eurocurrency Rate Loan or aconversion to or continuation thereof that (a) deposits (whether in Dollars oran Alternative Currency) are not being offered to banks in the applicableoffshore interbank market for such currency for the applicable amount andInterest Period of such Eurocurrency Rate Loan, (b) adequate and reasonablemeans do not exist for determining the Eurocurrency Base Rate for any requestedInterest Period with respect to a proposed Eurocurrency Rate Committed Loan(whether in Dollars or an Alternative Currency), or (c) the Eurocurrency BaseRate for any requested Interest Period with respect to a proposed EurocurrencyRate Committed Loan does not adequately and fairly reflect the cost to suchLenders of funding such Loan, the Administrative Agent will promptly so notifythe Company and each Lender. Thereafter, the obligation of the Lenders to makeor maintain Eurocurrency Rate Loans shall be suspended until the AdministrativeAgent (upon the instruction of the Required Lenders) revokes such notice. Uponreceipt of such notice, the Company may revoke any pending request for aBorrowing of, conversion to or continuation of Eurocurrency Rate Committed Loansor, failing that, will be deemed to have converted such request into a requestfor a Committed Borrowing of Base Rate Loans in the amount specified therein. 3.04 INCREASED COSTS. (a) Increased Costs Generally. If any Change in Law shall: 57 (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except (A) any reserve requirement reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or the L/C Issuer; (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurocurrency Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or (iii) cause the Mandatory Cost, as calculated hereunder, not to represent the cost to any Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans; or (iv) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;and the result of any of the foregoing shall be to increase the cost to suchLender of making or maintaining any Eurocurrency Loan (or of maintaining itsobligation to make any such Loan), or to increase the cost to such Lender or theL/C Issuer of participating in, issuing or maintaining any Letter of Credit (orof maintaining its obligation to participate in or to issue any Letter ofCredit), or to reduce the amount of any sum received or receivable by suchLender or the L/C Issuer hereunder (whether of principal, interest or any otheramount) then, upon request of such Lender or the L/C Issuer, the Company willpay on demand to such Lender or the L/C Issuer, as the case may be, suchadditional amount or amounts as will compensate such Lender or the L/C Issuer,as the case may be, for such additional costs incurred or reduction suffered. (b) Capital Requirements. If any Lender or the L/C Issuer determines thatany Change in Law affecting such Lender or the L/C Issuer or any Lending Officeof such Lender or such Lender’s or the L/C Issuer’s holding company, if any,regarding capital requirements has or would have the effect of reducing the rateof return on such Lender’s or the L/C Issuer’s capital or on the capital of suchLender’s or the L/C Issuer’s holding company, if any, as a consequence of thisAgreement, the Commitments of such Lender or the Loans made by, orparticipations in Letters of Credit held by, such Lender, or the Letters ofCredit issued by the L/C Issuer, to a level below that which such Lender or theL/C Issuer or such Lender’s or the L/C Issuer’s holding company could haveachieved but for such Change in Law (taking into consideration such Lender’s orthe L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’sholding company with respect to capital adequacy), then from time to time theCompany will pay to such Lender or the L/C Issuer, as the case may be, suchadditional amount or amounts as will compensate such Lender or the L/C Issuer orsuch Lender’s or the L/C Issuer’s holding company for any such reductionsuffered. 58 (c) Certificates for Reimbursement. A certificate of a Lender or the L/CIssuer setting forth the amount or amounts necessary to compensate such Lenderor the L/C Issuer or its holding company, as the case may be, as specified insubsection (a) or (b) of this Section and delivered to the Company shall beconclusive absent manifest error. The Company shall pay such Lender or the L/CIssuer, as the case may be, the amount shown as due on any such certificatewithin 10 days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender or theL/C Issuer to demand compensation pursuant to the foregoing provisions of thisSection shall not constitute a waiver of such Lender’s or the L/C Issuer’s rightto demand such compensation, provided that the Company shall not be required tocompensate a Lender or the L/C Issuer pursuant to the foregoing provisions ofthis Section for any increased costs incurred or reductions suffered more thanninety days prior to the date that such Lender or the L/C Issuer, as the casemay be, notifies the Company of the Change in Law giving rise to such increasedcosts or reductions and of such Lender’s or the L/C Issuer’s intention to claimcompensation therefor (except that, if the Change in Law giving rise to suchincreased costs or reductions is retroactive, then the ninety day periodreferred to above shall be extended to include the period of retroactive effectthereof). (e) Additional Reserve Requirements. The Company shall pay to each Lender,as long as such Lender shall be required to comply with any reserve ratiorequirement or analogous requirement (other than those compensated throughMandatory Costs) of any central banking or financial regulatory authorityimposed in respect of the maintenance of the Commitments or the funding of theEurocurrency Rate Loans, such additional costs (expressed as a percentage perannum and rounded upwards, if necessary, to the nearest five decimal places)equal to the actual costs allocated to such Commitment or Loan by such Lender(as determined by such Lender in good faith, which determination shall beconclusive), which shall be due and payable on each date on which interest ispayable on such Loan, provided the Company shall have received at least 15 days’prior notice (with a copy to the Administrative Agent) of such additional costsfrom such Lender. If a Lender fails to give notice 15 days prior to the relevantInterest Payment Date, such additional costs shall be due and payable 15 daysfrom receipt of such notice. 3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy tothe Administrative Agent) from time to time, the Company shall promptlycompensate such Lender for and hold such Lender harmless from any loss, cost orexpense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan otherthan a Base Rate Loan on a day other than the last day of the Interest Periodfor such Loan (whether voluntary, mandatory, automatic, by reason ofacceleration, or otherwise); (b) any failure by the Company (for a reason other than the failure ofsuch Lender to make a Loan) to prepay, borrow, continue or convert any Loanother than a Base Rate Loan on the date or in the amount notified by theCompany; (c) any failure by the Company to make payment of any Loan or drawingunder any Letter of Credit (or interest due thereon) denominated in anAlternative Currency on its scheduled due date or any payment thereof in adifferent currency; or 59 (d) any assignment of a Eurocurrency Rate Loan on a day other than thelast day of the Interest Period therefor as a result of a request by the Companypursuant to Section 10.13;including any loss of anticipated profits, any foreign exchange losses, and anyloss or expense arising from the liquidation or reemployment of funds obtainedby it to maintain such Loan or from fees payable to terminate the deposits fromwhich such funds were obtained or from the performance of any foreign exchangecontract. The Company shall also pay any customary administrative fees chargedby such Lender in connection with the foregoing. For purposes of calculating amounts payable by the Company to the Lendersunder this Section 3.05, each Lender shall be deemed to have funded eachEurocurrency Rate Committed Loan made by it at the Eurocurrency Base Rate usedin determining the Eurocurrency Rate for such Loan by a matching deposit orother borrowing in the offshore interbank market for such currency for acomparable amount and for a comparable period, whether or not such EurocurrencyRate Committed Loan was in fact so funded. 3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) Designation of a Different Lending Office. If any Lender requestscompensation under Section 3.04, or the Company is required to pay anyadditional amount to any Lender or any Governmental Authority for the account ofany Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant toSection 3.02, then such Lender shall use reasonable efforts to designate adifferent Lending Office for funding or booking its Loans hereunder or to assignits rights and obligations hereunder to another of its offices, branches oraffiliates, if, in the judgment of such Lender, such designation or assignment(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,as the case may be, in the future, or eliminate the need for the notice pursuantto Section 3.02, as applicable, and (ii) in each case, would not subject suchLender to any unreimbursed cost or expense and would not otherwise bedisadvantageous to such Lender. (b) Replacement of Lenders. If any Lender requests compensation underSection 3.04, or if the Company is required to pay any additional amount to anyLender or any Governmental Authority for the account of any Lender pursuant toSection 3.01, the Company may replace such Lender in accordance with Section10.13. 3.07 SURVIVAL. All of the Company’s obligations under this Article IIIshall survive termination of the Aggregate Commitments and repayment of allother Obligations hereunder. ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 4.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS. The obligation of eachLender to make its initial Credit Extension hereunder, and to receive throughthe Administrative Agent the initial Bid Request, is subject to the conditionthat the Administrative Agent shall have received on or before the date of theinitial Credit Extension or Bid Request all of the following, in form andsubstance satisfactory to the Administrative Agent and each Lender, and insufficient copies for each Lender: 60 (a) Loan Documents. This Agreement and any Notes executed by each partythereto shall have been delivered to Administrative Agent; (b) Resolutions; Incumbency. (i) Copies of the resolutions of the board of directors of the Company authorizing the transactions contemplated hereby, certified as of the Closing Date by the Secretary or an Assistant Secretary of the Company; and (ii) A certificate of the Secretary or Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to execute, deliver and perform, as applicable, this Agreement, and all other Loan Documents to be delivered by it hereunder; (c) Organization Documents; Good Standing. Each of the followingdocuments: (i) the certificate of incorporation and the bylaws of the Company as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of the Company as of the Closing Date; and (ii) a good standing certificate for the Company from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation and the state of its principal place of business as of a recent date; (d) Legal Opinions. An opinion of Latham and Watkins, special counsel tothe Company and addressed to the Administrative Agent and the Lenders, in formand substance satisfactory to the Administrative Agent; (e) Payment of Fees. Evidence of payment by the Company of all accrued andunpaid fees, to the extent then due and payable on the Closing Date, includingwithout limitation all accrued interest and fees due and owing under theExisting Credit Agreement; (f) Certificate. A certificate signed by a Responsible Officer on behalfof the Company, dated as of the Closing Date, stating: (i) that the representations and warranties contained in Article V are true and correct on and as of such date, as though made on and as of such date; (ii) that no Default or Event of Default exists or would result from the initial Borrowing; (iii) that there has occurred since December 31, 2003, no event or circumstance that has resulted or could reasonably be expected to result in a Material Adverse Effect; and (iv) the current Debt Ratings; and 61 (g) Existing Credit Agreement. Evidence that the Existing Credit Agreementhas been or concurrently with the Closing Date is being terminated, and anyrevolving loans or other monetary obligations under the Existing CreditAgreement as in effect immediately prior to the effectiveness of this Agreementhave been paid in full or refinanced on the Closing Date with Loans hereunder. (h) OFAC. A letter from the Company to the Administrative Agent relatingto OFAC matters, in form and substance satisfactory to the Administrative Agent. (i) Other Documents. Such other approvals, opinions, documents ormaterials as the Administrative Agent or any Lender may reasonably request. Without limiting the generality of the provisions of Section 9.04, forpurposes of determining compliance with the conditions specified in this Section4.01, each Lender that has signed this Agreement shall be deemed to haveconsented to, approved or accepted or to be satisfied with, each document orother matter required thereunder to be consented to or approved by or acceptableor satisfactory to a Lender unless the Administrative Agent shall have receivednotice from such Lender prior to the proposed Closing Date specifying itsobjection thereto. 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender tohonor any Request for Credit Extension (other than a Committed Loan Noticerequesting only a conversion of Committed Loans to the other Type, or acontinuation of Eurocurrency Rate Committed Loans) is subject to the followingconditions precedent: (a) The representations and warranties of the Company contained in ArticleV shall be true and correct on and as of the date of such Credit Extension,except to the extent that such representations and warranties specifically referto an earlier date, in which case they shall be true and correct as of suchearlier date, and except that for purposes of this Section 4.02, therepresentations and warranties contained in Section 5.11(a) shall be deemed torefer to the most recent statements furnished pursuant to Sections 6.01(a) and6.01(b). (b) No Default or Event of Default shall exist or shall result from suchCredit Extension. (c) The Administrative Agent and, if applicable, the L/C Issuer or theSwing Line Lender shall have received a Request for Credit Extension inaccordance with the requirements hereof. Each Request for Credit Extension (other than a Committed Loan Noticerequesting only a conversion of Committed Loans to the other Type or acontinuation of Eurocurrency Rate Committed Loans) submitted by the Companyshall be deemed to be a representation and warranty that the conditionsspecified in Sections 4.02(a) and (b) have been satisfied on and as of the dateof the applicable Credit Extension. ARTICLE V REPRESENTATIONS AND WARRANTIES The Company represents and warrants to the Administrative Agent and eachLender that: 62 5.01 CORPORATE EXISTENCE AND POWER. The Company and each of itsSubsidiaries: (a) is a corporation duly organized, validly existing and in good standingunder the laws of the jurisdiction of its incorporation; (b) has the power and authority and all governmental licenses,authorizations, consents and approvals to own its assets, carry on its businessand to execute, deliver, and perform its obligations under the Loan Documents; (c) is duly qualified as a foreign corporation and is licensed and in goodstanding under the laws of each jurisdiction where its ownership, lease oroperation of property or the conduct of its business requires such qualificationor license; and (d) is in compliance with all Requirements of Law;except, in each case referred to in subsection (c) or (d), to the extent thatthe failure to do so could not reasonably be expected to have a Material AdverseEffect. 5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, deliveryand performance by the Company of this Agreement and each other Loan Document towhich the Company is party, have been duly authorized by all necessary corporateaction, and do not and will not: (a) contravene the terms of any of the Company’s Organization Documents; (b) conflict with or result in any breach or contravention of, or thecreation of any Lien under, any document evidencing any material ContractualObligation to which the Company is a party or any order, injunction, writ ordecree of any Governmental Authority to which the Company or its property issubject; or (c) violate any Requirement of Law applicable to the Company. 5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,authorization, or other action by, or notice to, or filing with, anyGovernmental Authority is necessary or required in connection with theexecution, delivery or performance by, or enforcement against, the Company orany of its Subsidiaries of this Agreement or any other Loan Document other thanthose which have already been obtained or made. 5.04 BINDING EFFECT. This Agreement and each other Loan Document to whichthe Company or any of its Subsidiaries is a party constitute the legal, validand binding obligations of the Company and any of its Subsidiaries to the extentit is a party thereto, enforceable against such Person in accordance with theirrespective terms, except as enforceability may be limited by applicablebankruptcy, insolvency, or similar laws affecting the enforcement of creditors’rights generally or by equitable principles relating to enforceability. 5.05 LITIGATION. Except as specifically disclosed in Schedule 5.05, thereare no actions, suits, proceedings, claims or disputes pending, or to the bestknowledge of the Company, 63threatened or contemplated, at law, in equity, in arbitration or before anyGovernmental Authority, against the Company or its Subsidiaries or any of theirrespective properties which: (a) purport to affect or pertain to this Agreement or any other LoanDocument, or any of the transactions contemplated hereby or thereby; or (b) may reasonably be expected to have a Material Adverse Effect. Noinjunction, writ, temporary restraining order or any order of any nature hasbeen issued by any court or other Governmental Authority purporting to enjoin orrestrain the execution, delivery or performance of this Agreement or any otherLoan Document, or directing that the transactions provided for herein or thereinnot be consummated as herein or therein provided. 5.06 NO DEFAULT. No Default or Event of Default exists or would resultfrom the incurring of any Obligations by the Company. As of the Closing Date,neither the Company nor any Subsidiary is in default under or with respect toany Contractual Obligation in any respect which, individually or together withall such defaults, could reasonably be expected to have a Material AdverseEffect. 5.07 ERISA COMPLIANCE. Except as specifically disclosed in Schedule5.07: (a) Each Plan sponsored or maintained by the Company or an ERISA Affiliateis in compliance in all respects with the applicable provisions of ERISA, theCode and other federal or state law except where the failure to so comply,together with all other such failures to comply, could not reasonably beexpected to result in liability to the Company in an aggregate amount in excessof $25,000,000. Each Plan sponsored or maintained by the Company or an ERISAAffiliate which is intended to qualify under Section 401(a) of the Code hasreceived a favorable determination letter from the IRS and to the best knowledgeof the Company, nothing has occurred which would cause the loss of suchqualification. The Company and each ERISA Affiliate have made all requiredcontributions to any Plan subject to Section 412 of the Code sponsored ormaintained by the Company or an ERISA Affiliate, and no application for afunding waiver or an extension of any amortization period pursuant to Section412 of the Code has been made with respect to any Plan sponsored or maintainedby the Company or an ERISA Affiliate, except where the failure to make suchrequired contribution, together with all such other failures to make requiredcontributions, could not reasonably be expected to result in liability of theCompany in an aggregate amount in excess of $25,000,000. (b) There are no pending or, to the best knowledge of Company, threatenedclaims, actions or lawsuits, or action by any Governmental Authority, withrespect to any Plan sponsored or maintained by the Company or an ERISA Affiliatewhich has resulted or could reasonably be expected to result in a liability ofthe Company in an aggregate amount in excess of $25,000,000. There has been noprohibited transaction or violation of the fiduciary responsibility rules withrespect to any Plan, other than a Multiemployer Plan or, to the knowledge of theCompany and each ERISA Affiliate, with respect to any Multiemployer Plan, whichhas resulted or could reasonably be expected to result in a Material AdverseEffect. (c) (i) No ERISA Event or Events have occurred which could reasonably beexpected to result in liability of the Company in an aggregate amount in excessof $25,000,000; (ii) the 64aggregate amount of Unfunded Pension Liability among all Pension Plans does notexceed $25,000,000; (iii) neither the Company nor any ERISA Affiliate hasincurred, or reasonably expects to incur, liability under Title IV of ERISA withrespect to all Pension Plans (other than premiums due and not delinquent underSection 4007 of ERISA) in an aggregate amount in excess of $25,000,000; (iv)neither the Company nor any ERISA Affiliate has incurred, or reasonably expectsto incur, any liability (and no event has occurred which, with the giving ofnotice under Section 4219 of ERISA, would result in such liability) underSection 4201 or 4243 of ERISA with respect to all Plans in an aggregate amountin excess of $25,000,000; and (v) neither the Company nor any ERISA Affiliatehas engaged in a transaction that could be subject to Section 4069 or 4212(c) ofERISA and which could reasonably be expected to result in liability of theCompany in an amount in excess of $25,000,000. 5.08 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans are tobe used solely for the purposes set forth in and permitted by Section 6.12.Neither the Company nor any Subsidiary is generally engaged in the business ofpurchasing or selling Margin Stock or extending credit for the purpose ofpurchasing or carrying Margin Stock. 5.09 TITLE TO PROPERTIES. The Company and each Subsidiary have good recordand marketable title in fee simple to, or valid leasehold interests in, all realproperty necessary or used in the ordinary conduct of their respectivebusinesses, except for such defects in title as could not, individually or inthe aggregate, have a Material Adverse Effect. As of the Closing Date, theproperty of the Company and its Subsidiaries is subject to no Liens, other thanPermitted Liens. 5.10 TAXES. The Company and its Subsidiaries have filed all Federal andother material tax returns and reports required to be filed, and have paid allFederal and other material taxes, assessments, fees and other governmentalcharges levied or imposed upon them or their properties, income or assetsotherwise due and payable, except those which are being contested in good faithby appropriate proceedings and for which adequate reserves have been provided inaccordance with GAAP. There is no proposed tax assessment against the Company orany Subsidiary that would, if made, have a Material Adverse Effect. 5.11 FINANCIAL CONDITION. (a) The (i) audited consolidated financial statements of the Company andits Subsidiaries dated December 31, 2003, and the related consolidatedstatements of income or operations, shareholders’ equity and cash flows for thefiscal year ended on that date, and (ii) unaudited consolidated financialstatements of the Company and its Subsidiaries dated September 30, 2004, and therelated consolidated statements of income or operations, shareholders’ equityand cash flows for the fiscal quarter ended on that date: (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, subject to ordinary, good faith year end audit adjustments and the absence of footnotes; (ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and results of operations for the period covered thereby; and 65 (iii) except as specifically disclosed in Schedule 5.11, show all material indebtedness and other liabilities, direct or contingent, of the Company and its consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Contingent Obligations. (b) Since December 31, 2003, there has been no Material Adverse Effect. 5.12 ENVIRONMENTAL MATTERS. Except as specifically disclosed in Schedule5.12, the Company is not in violation of any Environmental Laws and there are nopending Environmental Claims against the Company which, individually or in theaggregate, would reasonably be expected to have a Material Adverse Effect. 5.13 REGULATED ENTITIES. None of the Company, any Person controlling theCompany, or any Subsidiary, is an “Investment Company” within the meaning of theInvestment Company Act of 1940. The Company is not subject to regulation underthe Public Utility Holding Company Act of 1935, the Federal Power Act, theInterstate Commerce Act, any state public utilities code, or any other Federalor state statute or regulation limiting its ability to incur Indebtedness. 5.14 SUBSIDIARIES. As of the date of this Agreement, the Company has noSubsidiaries other than those specifically disclosed in part (a) of Schedule5.14 hereto and has no equity investments in any other corporation or entityother than those specifically disclosed in part (b) of Schedule 5.14. Unlessotherwise indicated on Schedule 5.14, as of the date of this Agreement, all ofthe issued and outstanding shares of capital stock of each of the Subsidiarieslisted on Schedule 5.14 are owned directly or indirectly through Wholly-OwnedSubsidiaries by the Company and all of such shares have been duly and validlyauthorized and issued and are fully paid and non-assessable and no party has aright to acquire any such capital stock and there are no outstandingsubscription options, warrants, commitments, convertible securities, preemptiverights or other rights exercisable or exchangeable for or convertible into suchcapital stock. 5.15 INSURANCE. Except as specifically disclosed in Schedule 5.15, theproperties of the Company and its Subsidiaries are insured as required bySection 6.06. 5.16 SWAP OBLIGATIONS. Neither the Company nor any of its Subsidiarieshas incurred any outstanding obligations under any Swap Contracts, other thanPermitted Swap Obligations. 5.17 FULL DISCLOSURE. None of the representations or warranties made bythe Company or any Subsidiary in the Loan Documents as of the date suchrepresentations and warranties are made or deemed made, and none of thestatements contained in any exhibit, report, statement or certificate furnishedby or on behalf of the Company or any Subsidiary in connection with the LoanDocuments (including the offering and disclosure materials delivered by or onbehalf of the Company to the Lenders prior to the Closing Date) taken as awhole, contains any untrue statement of a material fact or omits any materialfact required to be stated therein or necessary to make the statements madetherein, in light of the circumstances under which they are made, not misleadingas of the time when made or delivered. All projections and pro forma financialinformation contained in any materials furnished by or on behalf of the Companyor any of its Subsidiaries to any Lender are based on good faith estimates andassumptions by the 66management of the Company or the applicable Subsidiary, it being recognized bythe Lenders, however, that projections as to future events are not to be viewedas fact and that actual results during the period or periods covered by any suchprojections may differ from the projected results and that the differences maybe material. ARTICLE VI AFFIRMATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, or any Loan orother Obligation shall remain unpaid, unless the Required Lenders waivecompliance in writing: 6.01 FINANCIAL STATEMENTS. The Company shall deliver to theAdministrative Agent, and upon receipt thereof the Administrative Agent shallfurnish to each Lender: (a) as soon as available, but not later than 90 days after the end of eachfiscal year, commencing with the fiscal year ended December 31, 2004, a copy ofthe audited consolidated balance sheet of the Company and its Subsidiaries as atthe end of such year and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for such year, setting forth ineach case in comparative form the figures for the previous fiscal year, andaccompanied by the opinion of Deloitte & Touche LLP or anothernationally-recognized independent public accounting firm (“Independent Auditor”)which opinion shall state that such consolidated financial statements presentfairly the financial position for the periods indicated in conformity with GAAPapplied on a consistent basis. Such opinion shall not be qualified or limited,in either case, because of a restricted or limited examination by theIndependent Auditor of any material portion of the Company’s or any Subsidiary’srecords and shall be delivered to the Administrative Agent pursuant to areliance letter between the Administrative Agent and Lenders and suchIndependent Auditor in form and substance satisfactory to the AdministrativeAgent; (b) as soon as available, but not later than 45 days after the end of eachof the first three fiscal quarters of each fiscal year, commencing with thefiscal quarter ended March 31, 2005, a copy of the unaudited consolidatedbalance sheet of the Company and its Subsidiaries as of the end of such quarterand the related consolidated statements of income for such quarter and the yearto date period then ended, shareholders’ equity and cash flows for the periodcommencing on the first day of the fiscal year and ending on the last day ofsuch quarter, and certified by a Responsible Officer as fairly presenting, inaccordance with GAAP (subject to ordinary, good faith year-end auditadjustments), the financial position and the results of operations of theCompany and the Subsidiaries; (c) promptly when available and in any event within 45 days after theclose of each fiscal year commencing with the fiscal year ending December 31,2004, a business and financial plan, including projections of consolidated cashflows and statements of income, for the Company and its Subsidiaries for thethen current fiscal year, setting forth such consolidated projections on aquarter-by-quarter basis and including a projected year-end consolidated balancesheet; and 67 (d) promptly upon receipt thereof, copies of all statements as to thematerial weaknesses of accounting controls submitted to the Company byindependent public accountants in connection with each annual or interim auditmade by such accountants of the financial statements of the Company or any ofits Subsidiaries. To the extent included therein, the information required to be deliveredpursuant to this Section 6.01 may be delivered by delivery of the financialstatements and reports required to be delivered pursuant to Section 6.02(c). 6.02 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to theAdministrative Agent, and upon receipt thereof the Administrative Agent shallfurnish to each Lender: (a) concurrently with the delivery of the financial statements referred toin Section 6.01(a), a certificate of the Independent Auditor stating that inmaking the examination necessary therefor no knowledge was obtained of anyDefault or Event of Default, except as specified in such certificate; (b) concurrently with the delivery of the financial statements referred toin Sections 6.01(a) and (b), a Compliance Certificate executed by a ResponsibleOfficer; (c) promptly, copies (which may be in electronic format) of all financialstatements and reports that the Company sends to its shareholders, and copies ofall financial statements and regular, periodical or special reports (includingForms 10-K, 10-Q and 8-K but not including Forms 3, 4 or 5) that the Company orany Subsidiary may make to, or file with, the SEC; and (d) promptly, such additional information regarding the business,financial or corporate affairs of the Company or any Subsidiary as theAdministrative Agent, at the request of any Lender, may from time to timereasonably request. 6.3 NOTICES. The Company shall promptly notify the Administrative Agentand each Lender: (a) of the occurrence of any Default or Event of Default, upon aResponsible Officer becoming aware thereof; (b) of any matter that has resulted or may (in the reasonable judgment ofthe Company), reasonably be expected to result in a Material Adverse Effect,including (i) breach or non-performance of, or any default under, a ContractualObligation of the Company or any Subsidiary; (ii) any dispute, litigation,investigation, proceeding or suspension between the Company or any Subsidiaryand any Governmental Authority; or (iii) the commencement of, or any materialdevelopment in, any litigation or proceeding affecting the Company or anySubsidiary, including pursuant to any applicable Environmental Laws; (c) of the occurrence of any of the following events affecting the Companyor any ERISA Affiliate (but in no event more than 30 days after such event), anddeliver to the Administrative Agent and each Lender a copy of any notice withrespect to such event that is 68filed with a Governmental Authority and any notice delivered by a GovernmentalAuthority to the Company or any ERISA Affiliate with respect to such event: (i) an ERISA Event or Events which could reasonably be expected to result in liability of the Company in an aggregate amount in excess of $25,000,000; or (ii) the Unfunded Pension Liability among all Pension Plans is reasonably expected to exceed $25,000,000. (d) of any material change in accounting policies or financial reportingpractices by the Company or any of its consolidated Subsidiaries; and (e) of any announcement by Moody’s or S&P of any change in a Debt Rating. Each notice under this Section shall be accompanied by a written statementby a Responsible Officer setting forth details of the occurrence referred totherein, and stating what action the Company or any affected Subsidiary proposesto take with respect thereto and at what time (although the failure to take anysuch action shall not constitute a Default or Event of Default under thisAgreement). Each notice under Section 6.03(a) shall describe each Default orEvent of Default which has occurred or which is expected to occur. 6.04 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company shall, andshall cause each Material Subsidiary to: (a) preserve and maintain in full force and effect its corporate existenceand good standing under the laws of its state or jurisdiction of incorporation,except as otherwise permitted by this Agreement; (b) preserve and maintain in full force and effect all governmentalrights, privileges, qualifications, permits, licenses and franchises necessaryor desirable in the normal conduct of its business except in connection withtransactions permitted by Section 7.03 and sales of assets permitted by Section7.02 and except for any of the foregoing the expiration or termination of whichcould not reasonably be expected to have a Material Adverse Effect; (c) use reasonable efforts, in the ordinary course of business, topreserve its business organization; and (d) preserve or renew all of its registered patents, trademarks, tradenames and service marks, the non-preservation of which could reasonably beexpected to have a Material Adverse Effect. 6.05 MAINTENANCE OF PROPERTY. The Company shall maintain, and shall causeeach Material Subsidiary to maintain, and preserve all its property which isused in its business in good working order and condition, ordinary wear and tearexcepted except where the failure to so maintain or preserve could notreasonably be expected to have a Material Adverse Effect and except as permittedby Section 7.02. 69 6.06 INSURANCE. The Company shall maintain, and shall cause eachSubsidiary to maintain, with financially sound and reputable independentinsurers, insurance with respect to its properties and business against loss ordamage of the kinds customarily insured against by Persons engaged in the sameor similar business, of such types and in such amounts as are customarilycarried under similar circumstances by such other Persons, provided that theCompany and its Subsidiaries may self-insure against such risks and in suchamounts as is usually self-insured by companies engaged in similar businessesand owning similar properties in the same general areas in which the Company orsuch Subsidiary operates. 6.07 PAYMENT OF TAX OBLIGATIONS. The Company shall, and shall cause eachSubsidiary to, pay and discharge as the same shall become due and payable, alltax liabilities, assessments and governmental charges or levies upon it or itsproperties or assets, unless the same are being contested in good faith byappropriate proceedings and adequate reserves in accordance with GAAP are beingmaintained by the Company or such Subsidiary. 6.08 COMPLIANCE WITH LAWS. The Company shall comply, and shall cause eachSubsidiary to comply, in all material respects with all Requirements of Law ofany Governmental Authority having jurisdiction over it or its business(including the Federal Fair Labor Standards Act), except where the failure to socomply could not reasonably be expected to have a Material Adverse Effect. 6.09 COMPLIANCE WITH ERISA. The Company shall, and shall cause each of itsERISA Affiliates to: (a) maintain each Plan in compliance in all materialrespects with the applicable provisions of ERISA, the Code and other federal orstate law; (b) cause each Plan which is qualified under Section 401(a) of theCode to maintain such qualification; and (c) make all required contributions toany Plan subject to Section 412 of the Code except, in the case of (a), (b) and(c) above where such failure to maintain or contribute could not reasonably beexpected to result in liability of the Company in excess of $25,000,000 in theaggregate. 6.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shallmaintain and shall cause each Subsidiary to maintain proper books of record andaccount, in which full, true and correct entries in conformity with GAAPconsistently applied shall be made of all financial transactions and mattersinvolving the assets and business of the Company and such Subsidiary. TheCompany shall permit, and shall cause each Subsidiary to permit, representativesand independent contractors of the Administrative Agent or representatives ofany Lender to visit and inspect any of their respective properties, to examinetheir respective corporate, financial and operating records, and make copiesthereof or abstracts therefrom, and to discuss their respective affairs,finances and accounts with their respective directors, officers, and, in thepresence of the Company if the Company shall so request, the IndependentAuditor, all such reasonable times during normal business hours and as often asmay be reasonably desired, upon reasonable advance notice to the Company. 6.11 ENVIRONMENTAL LAWS. The Company shall, and shall cause eachSubsidiary to, conduct its operations and keep and maintain its property incompliance with all Environmental Laws, except where the failure to so complycould not reasonably be expected to have a Material Adverse Effect. 70 6.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans (i)to refinance existing debt of the Company and its Subsidiaries and (ii) forworking capital and other general corporate purposes (including Acquisitions)not in contravention of any Requirement of Law (including Regulations T, U and Xof the FRB) or of any Loan Document. ARTICLE VII NEGATIVE AND FINANCIAL COVENANTS So long as any Lender shall have any Commitment hereunder, or any Loan orother Obligation shall remain unpaid, unless the Required Lenders waivecompliance in writing: 7.01 LIMITATION ON LIENS. The Company shall not, and shall not suffer orpermit any Subsidiary to, directly or indirectly, make, create, incur, assume orsuffer to exist any Lien upon or with respect to any part of its property,whether now owned or hereafter acquired, other than the following (“PermittedLiens”): (a) any Lien existing on property of the Company or any Subsidiary on theClosing Date and set forth in Schedule 7.01 securing Indebtedness outstanding onsuch date; (b) any Lien created under any Loan Document; (c) Liens for taxes, fees, assessments or other governmental charges whichare not delinquent or remain payable without penalty, or to the extent thatnon-payment thereof is permitted by Section 6.07, provided that no notice oflien has been filed or recorded under the Code; (d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s,repairmen’s or other similar Liens arising in the ordinary course of businesswhich are not delinquent for more than 90 days or remain payable without penaltyor which are being contested in good faith and by appropriate proceedings, whichproceedings have the effect of preventing the forfeiture or sale of the propertysubject thereto; (e) Liens (other than any Lien imposed by ERISA) consisting of pledges ordeposits required in the ordinary course of business in connection with workers’compensation, unemployment insurance and other social security legislation; (f) Liens on the property of the Company or its Subsidiary securing (i)the non-delinquent performance of bids, trade contracts (other than for borrowedmoney), leases, statutory obligations, (ii) contingent obligations on surety andappeal bonds, and (iii) other non-delinquent obligations of a like nature; ineach case, incurred in the ordinary course of business and treating asnon-delinquent any delinquency which is being contested in good faith and byappropriate proceedings, which proceedings have the effect of preventing theforfeiture or sale of the property subject thereto; (g) Liens consisting of judgment or judicial attachment liens with respectto judgments which do not constitute an Event of Default and in the aggregate donot exceed $25,000,000; 71 (h) easements, rights-of-way, restrictions and other similar encumbranceswhich, in the aggregate, are not substantial in amount, and which do not in anycase materially detract from the value of the property subject thereto orinterfere with the ordinary conduct of the businesses of the Company and itsSubsidiaries; (i) Liens on assets of Persons which become Subsidiaries after the date ofthis Agreement, provided, however, that such Liens existed at the time therespective Persons became Subsidiaries and were not created in anticipationthereof and such liens do not extend to any other property of the Company(except proceeds of such property, and in the case of Liens on real estate orequipment, items which become fixtures on such real estate or are accessions tosuch equipment pursuant to the terms of the original agreement governing suchLien); (j) purchase money security interests on any property acquired or held bythe Company or its Subsidiaries in the ordinary course of business, securingIndebtedness incurred or assumed for the purpose of financing all or any part ofthe cost of acquiring such property; provided that (i) any such Lien attaches tosuch property concurrently with or within 90 days after the acquisition thereof,(ii) such Lien attaches solely to the property so acquired in such transactionand the proceeds thereof, (iii) the principal amount of the debt secured therebydoes not exceed 100% of the cost of such property, and (iv) the principal amountof the Indebtedness secured by any and all such purchase money securityinterests, together with Indebtedness permitted under Section 7.05(d) andAttributable Indebtedness in respect of Sale and Leaseback Transactionsoutstanding and permitted by Section 7.13(a), shall not at any time exceed$40,000,000; (k) Liens arising solely by virtue of any statutory or common lawprovision relating to banker’s liens, rights of set-off or similar rights andremedies as to deposit accounts or other funds maintained with a creditordepository institution; provided that (i) such deposit account is not adedicated cash collateral account and is not subject to restrictions againstaccess by the Company in excess of those set forth by regulations promulgated bythe FRB, and (ii) such deposit account is not intended by the Company or anySubsidiary to provide collateral to the depository institution; (l) Liens consisting of pledges of cash collateral or governmentsecurities, to secure on a mark-to-market basis Permitted Swap Obligations(including customary netting arrangements therein) only, provided that (i) thecounterparty to any Swap Contract relating to such Permitted Swap Obligations isunder a similar requirement to deliver similar collateral from time to time tothe Company or the Subsidiary party thereto on a mark-to-market basis; and (ii)the aggregate value of such collateral so pledged by the Company and theSubsidiaries together in favor of any counterparty does not at any time exceed$10,000,000; (m) Liens securing reimbursement obligations for letters of credit whichencumber only goods and rights related thereto, or documents of title coveringgoods, which are purchased in transactions for which such letters of credit areissued; (n) any extension, renewal or substitution of or for any of the foregoingLiens; provided that (i) the Indebtedness or other obligation or liabilitysecured by the applicable Lien shall not exceed the Indebtedness or otherobligation or liability existing immediately prior to 72such extension, renewal or substitution and (ii) the Lien securing suchIndebtedness or other obligation or liability shall be limited to the propertywhich, immediately prior to such extension, renewal or substitution, securedsuch Indebtedness or other obligation or liability; and (o) other Liens securing obligations which, together with the amount ofAttributable Indebtedness in respect of Sale and Leaseback Transactionsoutstanding and permitted by Section 7.13(b), do not exceed $10,000,000 in theaggregate at any one time outstanding. 7.02 DISPOSITION OF ASSETS. The Company shall not, and shall not suffer orpermit any Subsidiary to, directly or indirectly, sell, assign, lease, convey,transfer or otherwise dispose of (collectively, a “Disposition”) (whether in oneor a series of transactions) any property (including accounts and notesreceivable, with or without recourse) or enter into any agreement to do any ofthe foregoing, except: (a) Dispositions of inventory, or used, worn-out, obsolete or surplusequipment or intellectual property, all in the ordinary course of business; (b) Dispositions of equipment and other fixed assets to the extent thatsuch equipment or other fixed assets is exchanged for credit against thepurchase price of similar replacement equipment or other fixed assets, or theproceeds of such sale are reasonably promptly applied to the purchase price ofsuch replacement equipment or other fixed assets; (c) Dispositions of Accounts Receivable pursuant to a PermittedReceivables Purchase Facility; (d) Disposition of assets received in connection with the bankruptcy orreorganization of suppliers and customers and in settlement of delinquentobligations of, and other disputes with, customers and suppliers arising in theordinary course of business; (e) Dispositions of assets between and among the Company and itsWholly-Owned Subsidiaries that are Domestic Subsidiaries, and Dispositions ofassets between and among Wholly-Owned Subsidiaries of the Company that areForeign Subsidiaries; (f) sales of Accounts Receivable by Foreign Subsidiaries which do notprovide directly or indirectly for recourse for credit losses against the sellerof such Accounts Receivable or against any of such seller’s Affiliates and whichare done on customary market terms or on other terms satisfactory to theAdministrative Agent; and (g) Dispositions not otherwise permitted hereunder which are made for fairmarket value; provided, that (i) at the time of any disposition, no Event ofDefault shall exist or shall result from such disposition, (ii) the aggregatesales price from such disposition shall be paid in cash (provided, that theCompany may accept promissory notes in an aggregate principal amount outstandingat any time not to exceed $10,000,000), and (iii) the aggregate value of allassets so sold by the Company and its Subsidiaries pursuant to this subsection(g), together, shall not exceed in any fiscal year, 10% of Consolidated TotalAssets as of the end of the most recent fiscal year (but excluding, for purposesof calculation of such 10% amount, the assets of any operating business sold asa whole in compliance with the proviso at the end of this subsection), providedfurther that the sale by the Company or any Subsidiary of one or more operating 73business in one year which, in the aggregate, accounts for more than 10% ofEBITDA of the Company as of the most recently ended fiscal year shall requirethe consent of the Required Lenders and the Company, on a pro forma basiscalculated as of the last day of the most recently completed fiscal quarter,shall be in compliance with the Leverage Ratio as of the date of suchDisposition. 7.03 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall notsuffer or permit any Subsidiary to, merge or consolidate with or into anyPerson, except: (a) any Subsidiary may merge with the Company, provided that the Companyshall be the continuing or surviving corporation, or with any one or moreSubsidiaries, provided that if any transaction shall be between a Subsidiary anda Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuingor surviving corporation; and (b) any Subsidiary may sell all or substantially all of its assets (uponvoluntary liquidation or otherwise), to the Company or another Wholly-OwnedSubsidiary or as otherwise permitted by Section 7.02.Any Disposition of assets which would be permitted by Section 7.02 or anyInvestment permitted by Section 7.04 may also be done via merger orconsolidation and such merger or consolidation (which results solely in aDisposition otherwise permitted by Section 7.02 or Investment otherwisepermitted by Section 7.04, as the case may be) shall be permitted pursuant tothis Section 7.03. 7.04 LOANS AND INVESTMENTS. The Company shall not purchase or acquire, orsuffer or permit any Subsidiary to purchase or acquire, or make any commitmenttherefor, any capital stock, equity interest, or any obligations or othersecurities of, or any interest in, any Person, or make or commit to make (unlesscontingent upon a waiver or amendment of the terms hereof) any Acquisitions, ormake or commit to make any advance, loan, extension of credit or capitalcontribution to or any other investment in, any Person including any Affiliateof the Company (together, “Investments”), except for: (a) Investments held by the Company or Subsidiary in the form of cash orcash equivalents; (b) extensions of credit in the nature of accounts receivable or notesreceivable arising from the sale or lease of goods or services in the ordinarycourse of business; (c) extensions of credit by the Company or its Subsidiaries to theiremployees in the ordinary course of business for travel, relocation and relatedexpenses; (d) existing Investments in Subsidiaries and the other Investmentsidentified on Schedule 7.04 (in each case, as such Investments may be adjusteddue to appreciation, repayment of principal, payment of interest, return ofcapital and similar circumstances); (e) additional Investments in any Subsidiary (other than an Investmentconstituting an Acquisition which shall be governed by subsection (f) below); 74 (f) Investments constituting a Permitted Acquisition; (g) Investments constituting Permitted Swap Obligations or payments oradvances under Swap Contracts relating to Permitted Swap Obligations; (h) Investments held by any Subsidiary of the Company in any of itscustomers or suppliers which are received as distributions in bankruptcyproceedings or as negotiated settlements for obligations incurred to it by suchcustomer for the purchase of goods manufactured or services provided by it; (i) Investments by way of stock or similar ownership interests of 50% orless in any Person in an aggregate amount not to exceed $50,000,000 at any onetime outstanding; (j) Investments by way of promissory notes received in connection with aDisposition permitted by Section 7.02(g); (k) Investments in a Receivables Subsidiary prior to the occurrence andcontinuation of an Event of Default which in the judgment of the Company arereasonably necessary in connection with any Permitted Receivables PurchaseFacility; and (l) additional investments of a nature not contemplated by the foregoingsubsections (a) through (k) not to exceed $50,000,000 in the aggregate at anytime outstanding, provided, however, that this clause shall not be construed topermit additional investments in ownership interests of 50% or less in anyPerson which would not be permitted by subsection (i) above. 7.05 LIMITATION ON INDEBTEDNESS. The Company shall not, and shall notsuffer or permit any Subsidiary to, create, incur, assume, suffer to exist, orotherwise become or remain directly or indirectly liable with respect to, anyIndebtedness, except: (a) Indebtedness incurred pursuant to this Agreement; (b) Indebtedness consisting of Contingent Obligations permitted pursuantto Section 7.07; (c) Indebtedness existing on the Closing Date and set forth in Schedule7.05, and any Refinancing Indebtedness with respect thereto; (d) Indebtedness secured by Liens permitted by Section 7.01(j) in anaggregate amount outstanding at any time not to exceed $40,000,000; (e) Intercompany Indebtedness to the extent permitted by Section 7.04;provided, however, that in the event of any subsequent issuance or transfer ofany capital stock which results in the holder of such Indebtedness ceasing to bea Subsidiary of the Company or any subsequent transfer of such Indebtedness(other than to the Company or any of its Subsidiaries) such Indebtedness shallbe required to be permitted under another clause of this Section 7.05; provided,further, however, that in the case of Intercompany Indebtedness consisting of aloan or advance to the Company, each such loan or advance shall be subordinatedto the indefeasible 75payment in full of all of the Company’s obligations pursuant to this Agreementand the other Loan Documents; (f) Subordinated Debt of the Company; (g) Indebtedness of any Subsidiary and unsecured guarantees thereof by theCompany, provided that the aggregate amount of such Indebtedness under thissubsection (g), together with Indebtedness consisting of Contingent Obligationsof any Subsidiary which are outstanding and permitted solely by Section 7.07(h),does not exceed at any time outstanding, 15% of Consolidated Total Assets; (h) Unsecured Indebtedness of the Company, as long as the Company wouldremain in compliance with Section 7.15 after giving pro forma effect to theincurrence of such Indebtedness; and (i) Receivables Facility Attributed Indebtedness. 7.06 TRANSACTIONS WITH AFFILIATES. The Company will not, and will notpermit any of its Subsidiaries to, enter into, or cause, suffer or permit toexist: (a) any arrangement or contract with any of its other Affiliates of anature customarily entered into by Persons which are Affiliates of each otherfor tax or financial reporting purposes (including, without limitation,management or similar contracts or arrangements relating to the allocation ofrevenues, taxes and expenses or otherwise) unless such arrangement or contractis fair and equitable to the Company or such Subsidiary; or (b) any other transaction, arrangement or contract with any of its otherAffiliates which would not be entered into by a prudent Person in the positionof the Company or such Subsidiary with, or which is on terms which are lessfavorable than are obtainable from, any Person which is not one of itsAffiliates;provided, however, that nothing in this Section shall be construed to restrictthe Company from paying reasonable and customary regular fees to directors ofthe Company who are not employees of the Company. 7.07 CONTINGENT OBLIGATIONS. The Company shall not, and shall not sufferor permit any Subsidiary to, create, incur, assume or suffer to exist anyContingent Obligations except: (a) endorsements for collection or deposit in the ordinary course ofbusiness; (b) Permitted Swap Obligations; (c) Contingent Obligations of the Company and its Subsidiaries existing asof the Closing Date and listed in Schedule 7.07; (d) Contingent Obligations with respect to Surety Instruments incurred inthe ordinary course of business; 76 (e) Guaranty Obligations of the Company with respect to any Indebtednesspermitted pursuant to this Agreement; (f) Guaranty Obligations of the Company and its Subsidiaries consisting ofpayment obligations incurred in connection with a Permitted Acquisition; (g) Guaranty Obligations of the Company consisting of a guarantee by theCompany of obligations of a Subsidiary or by a Subsidiary of obligations of itsSubsidiary under any lease or other agreement otherwise permitted hereunder(including customary performance guarantees under a Permitted ReceivablesPurchase Facility) or entered into in the ordinary course of business and, ineach case, not constituting Indebtedness; and (h) in addition to other Contingent Obligations permitted hereunder,Contingent Obligations which do not exceed $10,000,000 in the aggregate at anyone time outstanding, provided that to the extent such Contingent Obligationsconstitute Indebtedness of a Subsidiary, such Contingent Obligations, togetherwith Indebtedness of all Subsidiaries of the Company outstanding and permittedsolely under Section 7.05(g), shall not exceed 15% of Consolidated Net Worth. 7.08 RESTRICTED PAYMENTS. The Company shall not, and shall not suffer orpermit any Subsidiary to, (i) declare or make any dividend payment or otherdistribution of assets, properties, cash, rights, obligations or securities onaccount of any shares of any class of its capital stock, or purchase, redeem orotherwise acquire for value any shares of its capital stock or any warrants,rights or options to acquire such shares, now or hereafter outstanding, (ii)prepay or repay any principal of or make any payment of interest on, or redeem,or set aside any funds for the payment, prepayment or redemption of, or purchaseor otherwise acquire any interest in, any Subordinated Debt or (iii) make anydeposit for any of the foregoing purposes (each of (i), (ii) or (iii), a”Restricted Payment”) if a Default or Event of Default exists or would existafter giving effect thereto. 7.09 ERISA. The Company shall not, and shall not suffer or permit any ofits ERISA Affiliates to: (a) engage in a prohibited transaction or violation ofthe fiduciary responsibility rules with respect to any Plan which has resultedor could reasonably be expected to result in liability of the Company in anaggregate amount in excess of $25,000,000; or (b) engage in a transaction thatcould be subject to Section 4069 or 4212(c) of ERISA and which could reasonablybe expected to result in liability of the Company in excess of $25,000,000. 7.10 CHANGE IN BUSINESS. The Company shall not, and shall not suffer orpermit any Subsidiary to, engage in any material line of business substantiallydifferent from those lines of business carried on by the Company and itsSubsidiaries on the date hereof. 7.11 ACCOUNTING CHANGES. The Company shall not, and shall not suffer orpermit any Subsidiary to, make any significant change in accounting treatment orreporting practices, except as required by GAAP, or change the fiscal year ofthe Company. 7.12 MODIFICATIONS, ETC. OF SUBORDINATED DEBT AND RELATED DOCUMENTS. TheCompany will not consent to any amendment of any subordination or sinking fundprovisions or terms of required repayment or redemption contained in orapplicable to any Subordinated Debt 77or any guaranty thereof (except any extension in time of any such sinking fundprovision or term of required prepayment or redemption). 7.13 SALE-LEASEBACKS. The Company shall not, nor shall it permit any ofits Subsidiaries to, directly or indirectly, lease any property as lessee inconnection with a Sale and Leaseback Transaction entered into after the ClosingDate, except for (a) Sale and Leaseback Transactions entered into within 90 daysafter acquiring the applicable property where the Attributable Indebtedness withrespect to such Sale and Leaseback Transaction and all other outstanding Saleand Leaseback Transactions permitted pursuant to this subsection (a) does not,together with Indebtedness permitted under Section 7.05(d), exceed $40,000,000,and (b) other Sale and Leaseback Transactions where the AttributableIndebtedness, together with Indebtedness secured by Liens permitted by Section7.01(o), does not exceed $10,000,000. 7.14 NO NEGATIVE PLEDGES; SUBSIDIARY PAYMENTS. The Company will not, andwill not permit any of its Subsidiaries (other than Foreign Subsidiaries inconnection with the financings permitted by Section 7.05(g)) to enter into orsuffer to exist any agreement (excepting this Agreement and any Instrumentexecuted pursuant hereto and any agreement governing Indebtedness permitted tobe incurred under Section 7.05(i)) (a) prohibiting the creation or assumption ofany security interest upon its properties or assets, whether now owned orhereafter acquired or (b) which would restrict the ability of any Subsidiary topay or make dividends or distributions, in cash or kind, or to make loans,advances or other payments of whatsoever nature, or to make transfers ordispositions of all or part of its assets, in each case to the Company;provided, however, in the case of a consensual Lien on assets or property thatis permitted pursuant to Section 7.01, the Lien holder may, solely with respectof the assets or property to which such Lien attaches, contract for and receivea negative pledge with respect thereto and the proceeds and products thereof. 7.15 FINANCIAL COVENANTS. The Company shall not: (a) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of theend of any fiscal quarter of the Company to be less than 3.00. (b) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscalquarter of the Company to be greater than (i) 3.25 as of the end of each fullfiscal quarter from the Closing Date through and including the fiscal quarterended December 31, 2006; and (ii) 3.00 for the fiscal quarter ended March 31,2007 and each fiscal quarter thereafter. ARTICLE VIII EVENTS OF DEFAULT 8.01 EVENT OF DEFAULT. Any of the following shall constitute an “Event ofDefault”: (a) Non-Payment. The Company fails to pay, (i) when and as required to bepaid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)within five (5) days after the same becomes due, any other interest, fee or anyother amount payable hereunder or under any other Loan Document; or 78 (b) Representation or Warranty. Any representation or warranty by theCompany made or deemed made herein, in any other Loan Document, or which iscontained in any certificate, document or financial or other statement by theCompany, any Subsidiary, or any Responsible Officer, furnished at any timeunder this Agreement, or in or under any other Loan Document, is incorrect inany material respect on or as of the date made or deemed made; or (c) Specific Defaults. The Company fails to perform or observe any term,covenant or agreement (i) contained in Section 7.01, 7.04, 7.05 or 7.07 and suchfailure continues unremedied for ten Business Days or (ii) contained in any ofSection 6.03(a) or 6.12 or in any other provision of Article VII; or (d) Other Defaults. The Company or any Subsidiary party thereto fails toperform or observe any other term or covenant contained in this Agreement or anyother Loan Document, and such default shall continue unremedied for a period of20 days after the date upon which written notice thereof is given to the Companyby the Administrative Agent or any Lender; or (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make anypayment in respect of any Indebtedness or Contingent Obligation (other than inrespect of Swap Contracts), having an aggregate principal amount (includingundrawn committed or available amounts and including amounts owing to allcreditors under any combined or syndicated credit arrangement) of more than$25,000,000 when due (whether by scheduled maturity, required prepayment,acceleration, demand, or otherwise) and such failure continues after theapplicable grace or notice period, if any, specified in the relevant document onthe date of such failure; or (B) fails to perform or observe any other conditionor covenant, or any other event shall occur or condition exist, under anyagreement or instrument relating to any such Indebtedness or ContingentObligation, and such failure continues after the applicable grace or noticeperiod, if any, specified in the relevant document on the date of such failureif the effect of such failure, event or condition is to cause, or to permit theholder or holders of such Indebtedness or beneficiary or beneficiaries of suchIndebtedness (or a trustee or agent on behalf of such holder or holders orbeneficiary or beneficiaries) to cause such Indebtedness to be declared to bedue and payable prior to its stated maturity, or such Contingent Obligation tobecome payable or cash collateral in respect thereof to be demanded; or (ii)there occurs under any Swap Contract an Early Termination Date (as defined insuch Swap Contract) or similar event resulting from (1) any event of defaultunder such Swap Contract as to which the Company or any Subsidiary is theDefaulting Party (as defined in such Swap Contract) or (2) any Termination Event(as so defined) as to which the Company or any Subsidiary is an Affected Party(as so defined), and, in either event, the Swap Termination Value owed by theCompany or such Subsidiary as a result thereof is greater than $25,000,000 inthe aggregate; or (f) Insolvency; Voluntary Proceedings. The Company or any MaterialSubsidiary (i) ceases or fails to be solvent, or generally fails to pay, oradmits in writing its inability to pay, its debts as they become due, subject toapplicable grace periods, if any, whether at stated maturity or otherwise; (ii)voluntarily ceases to conduct its business in the ordinary course; (iii)commences any Insolvency Proceeding with respect to itself; or (iv) takes anyaction to effectuate or authorize any of the foregoing; or 79 (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding iscommenced or filed against the Company or any Material Subsidiary, or any writ,judgment, warrant of attachment, execution or similar process, is issued orlevied against a substantial part of the Company’s or any Material Subsidiary’sproperties, and any such proceeding or petition shall not be dismissed, or suchwrit, judgment, warrant of attachment, execution or similar process shall not bereleased, vacated or fully bonded within 60 days after commencement, filing orlevy; (ii) the Company or any Material Subsidiary admits the materialallegations of a petition against it in any Insolvency Proceeding, or an orderfor relief (or similar order under non-U.S. law) is ordered in any InsolvencyProceeding; or (iii) the Company or any Material Subsidiary acquiesces in theappointment of a receiver, trustee, custodian, conservator, liquidator,mortgagee in possession (or agent therefor), or other similar Person for itselfor a substantial portion of its property or business; or (h) ERISA. (i) An ERISA Event or Events shall occur with respect to one ormore Pension Plans or Multiemployer Plans which has resulted in liability of theCompany under Title IV of ERISA to such plans or the PBGC in an aggregate amountin excess of $25,000,000; or (ii) the Company or any ERISA Affiliate shall failto pay when due, after the expiration of any applicable grace period, anyinstallment payment with respect to its withdrawal liability under Section 4201of ERISA under a Multiemployer Plan in an aggregate amount in excess of$25,000,000; or (i) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory orders, decrees or arbitration awards is entered against theCompany or any Subsidiary involving in the aggregate a liability (to the extentnot covered by independent third-party insurance as to which the insurer doesnot dispute coverage) as to any single or related series of transactions,incidents or conditions, of $10,000,000 or more, and the same shall remainunsatisfied, unvacated and unstayed pending appeal for a period of 10 days afterthe entry thereof; or (j) Change of Control. There occurs any Change of Control; or (k) Invalidity of Subordination Provisions. The subordination provisionsof any agreement or instrument governing any Subordinated Debt is for any reasonrevoked or invalidated, or otherwise cease to be in full force and effect, anyPerson contests in any manner the validity or enforceability thereof or deniesthat it has any further liability or obligation thereunder, or the Indebtednesshereunder is for any reason subordinated or does not have the prioritycontemplated by this Agreement or such subordination provisions; or (l) Invalidity of Loan Documents. Any Loan Document, at any time after itsexecution and delivery and for any reason other than as expressly permittedhereunder or thereunder or satisfaction in full of all the Obligations, ceasesto be in full force and effect in any material respect which impairs theAdministrative Agent’s rights and remedies hereunder or releases the Companyfrom any of its material obligations hereunder; or the Company or any otherPerson contests in any manner the validity or enforceability of any LoanDocument; or the Company denies that it has any or further liability orobligation under any Loan Document, or purports to revoke, terminate or rescindany Loan Document. 80 8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and iscontinuing, the Administrative Agent shall, at the request of, or may, with theconsent of, the Required Lenders, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans and any obligationof the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon suchcommitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, allinterest accrued and unpaid thereon, and all other amounts owing or payablehereunder or under any other Loan Document to be immediately due and payable,without presentment, demand, protest or other notice of any kind, all of whichare hereby expressly waived by the Company; (c) require that the Company Cash Collateralize the L/C Obligations (in anamount equal to the then Outstanding Amount thereof); and (d) exercise on behalf of itself and the Lenders all rights and remediesavailable to it and the Lenders under the Loan Documents;provided, however, that upon the occurrence of an actual or deemed entry of anorder for relief with respect to the Company under the Bankruptcy Code of theUnited States, the obligation of each Lender to make Loans and any obligation ofthe L/C Issuer to make L/C Credit Extensions shall automatically terminate, theunpaid principal amount of all outstanding Loans and all interest and otheramounts as aforesaid shall automatically become due and payable, and theobligation of the Company to Cash Collateralize the L/C Obligations as aforesaidshall automatically become effective, in each case without further act of theAdministrative Agent or any Lender. 8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for inSection 8.02 (or after the Loans have automatically become immediately due andpayable and the L/C Obligations have automatically been required to be CashCollateralized as set forth in the proviso to Section 8.02), any amountsreceived on account of the Obligations shall be applied by the AdministrativeAgent in the following order: First, to payment of that portion of the Obligations constituting fees,indemnities, expenses and other amounts (including fees, charges anddisbursements of counsel to the Administrative Agent and amounts payable underArticle III) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees,indemnities and other amounts (other than principal and interest) payable to theLenders and the L/C Issuer (including fees, charges and disbursements of counselto the respective Lenders and the L/C Issuer (including fees and time chargesfor attorneys who may be employees of any Lender or the L/C Issuer) and amountspayable under Article III), ratably among them in proportion to the amountsdescribed in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accruedand unpaid interest on the Loans, L/C Borrowings and other Obligations, ratablyamong the Lenders and the 81L/C Issuer in proportion to the respective amounts described in this clauseThird payable to them; Fourth, to payment of that portion of the Obligations constituting unpaidprincipal of the Loans and L/C Borrowings, ratably among the Lenders and the L/CIssuer in proportion to the respective amounts described in this clause Fourthheld by them; Fifth, to the Administrative Agent for the account of the L/C Issuer, toCash Collateralize that portion of L/C Obligations comprised of the aggregateundrawn amount of Letters of Credit; and Last, the balance, if any, after all of the Obligations have beenindefeasibly paid in full, to the Company or as otherwise required by Law.Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregateundrawn amount of Letters of Credit pursuant to clause Fifth above shall beapplied to satisfy drawings under such Letters of Credit as they occur. If anyamount remains on deposit as Cash Collateral after all Letters of Credit haveeither been fully drawn or expired, such remaining amount shall be applied tothe other Obligations, if any, in the order set forth above. ARTICLE IX THE AGENT 9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuerhereby irrevocably appoints Bank of America to act on its behalf as theAdministrative Agent hereunder and under the other Loan Documents and authorizesthe Administrative Agent to take such actions on its behalf and to exercise suchpowers as are delegated to the Administrative Agent by the terms hereof orthereof, together with such actions and powers as are reasonably incidentalthereto. The provisions of this Article are solely for the benefit of theAdministrative Agent, the Lenders and the L/C Issuer, and the Company shall nothave rights as a third party beneficiary of any of such provisions except asspecifically provided in this Article. 9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agenthereunder shall have the same rights and powers in its capacity as a Lender asany other Lender and may exercise the same as though it were not theAdministrative Agent and the term “Lender” or “Lenders” shall, unless otherwiseexpressly indicated or unless the context otherwise requires, include the Personserving as the Administrative Agent hereunder in its individual capacity. SuchPerson and its Affiliates may accept deposits from, lend money to, act as thefinancial advisor or in any other advisory capacity for and generally engage inany kind of business with the Company or any Subsidiary or other Affiliatethereof as if such Person were not the Administrative Agent hereunder andwithout any duty to account therefor to the Lenders. 9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have anyduties or obligations except those expressly set forth herein and in the otherLoan Documents. Without limiting the generality of the foregoing, theAdministrative Agent: (a) shall not be subject to any fiduciary or other implied duties,regardless of whether a Default has occurred and is continuing; 82 (b) shall not have any duty to take any discretionary action or exerciseany discretionary powers, except discretionary rights and powers expresslycontemplated hereby or by the other Loan Documents that the Administrative Agentis required to exercise as directed in writing by the Required Lenders (or suchother number or percentage of the Lenders as shall be expressly provided forherein or in the other Loan Documents), provided that the Administrative Agentshall not be required to take any action that, in its opinion or the opinion ofits counsel, may expose the Administrative Agent to liability or that iscontrary to any Loan Document or applicable law; and (c) shall not, except as expressly set forth herein and in the other LoanDocuments, have any duty to disclose, and shall not be liable for the failure todisclose, any information relating to the Company or any of its Affiliates thatis communicated to or obtained by the Person serving as the Administrative Agentor any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or nottaken by it (i) with the consent or at the request of the Required Lenders (orsuch other number or percentage of the Lenders as shall be necessary, or as theAdministrative Agent shall believe in good faith shall be necessary, under thecircumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence ofits own gross negligence or willful misconduct. The Administrative Agent shallbe deemed not to have knowledge of any Default unless and until noticedescribing such Default is given to the Administrative Agent by the Company, aLender or the L/C Issuer. The Administrative Agent shall not be responsible for or have any duty toascertain or inquire into (i) any statement, warranty or representation made inor in connection with this Agreement or any other Loan Document, (ii) thecontents of any certificate, report or other document delivered hereunder orthereunder or in connection herewith or therewith, (iii) the performance orobservance of any of the covenants, agreements or other terms or conditions setforth herein or therein or the occurrence of any Default, (iv) the validity,enforceability, effectiveness or genuineness of this Agreement, any other LoanDocument or any other agreement, instrument or document or (v) the satisfactionof any condition set forth in Article IV or elsewhere herein, other than toconfirm receipt of items expressly required to be delivered to theAdministrative Agent. 9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall beentitled to rely upon, and shall not incur any liability for relying upon, anynotice, request, certificate, consent, statement, instrument, document or otherwriting (including any electronic message, Internet or intranet website postingor other distribution) believed by it to be genuine and to have been signed,sent or otherwise authenticated by the proper Person. The Administrative Agentalso may rely upon any statement made to it orally or by telephone and believedby it to have been made by the proper Person, and shall not incur any liabilityfor relying thereon. In determining compliance with any condition hereunder tothe making of a Loan, or the issuance of a Letter of Credit, that by its termsmust be fulfilled to the satisfaction of a Lender or the L/C Issuer, theAdministrative Agent may presume that such condition is satisfactory to suchLender or the L/C Issuer unless the Administrative Agent shall have receivednotice to the contrary from such Lender or the L/C Issuer prior to the making ofsuch Loan or the issuance of such Letter of Credit. The Administrative Agent mayconsult with legal counsel (who may be counsel for the Company), independentaccountants and other experts selected by it, and shall not be liable for 83any action taken or not taken by it in accordance with the advice of any suchcounsel, accountants or experts. 9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any andall of its duties and exercise its rights and powers hereunder or under anyother Loan Document by or through any one or more sub-agents appointed by theAdministrative Agent. The Administrative Agent and any such sub-agent mayperform any and all of its duties and exercise its rights and powers by orthrough their respective Related Parties. The exculpatory provisions of thisArticle shall apply to any such sub-agent and to the Related Parties of theAdministrative Agent and any such sub-agent, and shall apply to their respectiveactivities in connection with the syndication of the credit facilities providedfor herein as well as activities as Administrative Agent. 9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may atany time give notice of its resignation to the Lenders, the L/C Issuer and theCompany. Upon receipt of any such notice of resignation, the Required Lendersshall have the right, in consultation with the Company, to appoint a successor,which shall be a bank with an office in the United States, or an Affiliate ofany such bank with an office in the United States. If no such successor shallhave been so appointed by the Required Lenders and shall have accepted suchappointment within 30 days after the retiring Administrative Agent gives noticeof its resignation, then the retiring Administrative Agent may on behalf of theLenders and the L/C Issuer, appoint a successor Administrative Agent meeting thequalifications set forth above; provided that if the Administrative Agent shallnotify the Company and the Lenders that no qualifying Person has accepted suchappointment, then such resignation shall nonetheless become effective inaccordance with such notice and (1) the retiring Administrative Agent shall bedischarged from its duties and obligations hereunder and under the other LoanDocuments and (2) all payments, communications and determinations provided to bemade by, to or through the Administrative Agent shall instead be made by or toeach Lender and the L/C Issuer directly, until such time as the Required Lendersappoint a successor Administrative Agent as provided for above in this Section.Upon the acceptance of a successor’s appointment as Administrative Agenthereunder, such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring (or retired)Administrative Agent, and the retiring Administrative Agent shall be dischargedfrom all of its duties and obligations hereunder or under the other LoanDocuments (if not already discharged therefrom as provided above in thisSection). The fees payable by the Company to a successor Administrative Agentshall be the same as those payable to its predecessor unless otherwise agreedbetween the Company and such successor. After the retiring AdministrativeAgent’s resignation hereunder and under the other Loan Documents, the provisionsof this Article and Section 10.04 shall continue in effect for the benefit ofsuch retiring Administrative Agent, its sub-agents and their respective RelatedParties in respect of any actions taken or omitted to be taken by any of themwhile the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant tothis Section shall also constitute its resignation as L/C Issuer and Swing LineLender. Upon the acceptance of a successor’s appointment as Administrative Agenthereunder, (a) such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring L/C Issuer and Swing LineLender, (b) the retiring L/C Issuer and Swing Line Lender shall be dischargedfrom all of their respective duties and obligations hereunder or under the otherLoan 84Documents, and (c) the successor L/C Issuer shall issue letters of credit insubstitution for the Letters of Credit, if any, outstanding at the time of suchsuccession or make other arrangement satisfactory to the retiring L/C Issuer toeffectively assume the obligations of the retiring L/C Issuer with respect tosuch Letters of Credit. 9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lenderand the L/C Issuer acknowledges that it has, independently and without relianceupon the Administrative Agent or any other Lender or any of their RelatedParties and based on such documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into thisAgreement. Each Lender and the L/C Issuer also acknowledges that it will,independently and without reliance upon the Administrative Agent or any otherLender or any of their Related Parties and based on such documents andinformation as it shall from time to time deem appropriate, continue to make itsown decisions in taking or not taking action under or based upon this Agreement,any other Loan Document or any related agreement or any document furnishedhereunder or thereunder. 9.08 NO OTHER DUTIES, ETC. Anything herein to the contrarynotwithstanding, none of the Bookrunners, Arrangers or Syndication Agents listedon the cover page hereof shall have any powers, duties or responsibilities underthis Agreement or any of the other Loan Documents, except in its capacity, asapplicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder. ARTICLE X MISCELLANEOUS 10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of thisAgreement or any other Loan Document, and no consent to any departure by theCompany therefrom, shall be effective unless in writing signed by the RequiredLenders and the Company and acknowledged by the Administrative Agent, and eachsuch waiver or consent shall be effective only in the specific instance and forthe specific purpose for which given; provided, however, that no such amendment,waiver or consent shall: (a) waive any condition set forth in Section 4.01(a) without the writtenconsent of each Lender; (b) extend or increase the Commitment of any Lender (or reinstate anyCommitment terminated pursuant to Section 8.02) without the written consent ofsuch Lender; (c) postpone any date fixed by this Agreement or any other Loan Documentfor any payment of principal, interest, fees or other amounts due to the Lenders(or any of them) hereunder or under any other Loan Document without the writtenconsent of each Lender directly affected thereby; (d) reduce the principal of, or the rate of interest specified herein on,any Loan or L/C Borrowing, or (subject to subsection (v) of the second provisoto this Section 10.01) any fees or other amounts payable hereunder or under anyother Loan Document without the written consent of each Lender directly affectedthereby; provided, however, that only the consent of the 85Required Lenders shall be necessary to amend the definition of “Default Rate” orto waive any obligation of the Company to pay interest or Letter of Credit Feesat the Default Rate; (e) change Section 2.14 or Section 8.03 in a manner that would alter thepro rata sharing of payments required thereby without the written consent ofeach Lender; (f) amend Section 1.06 or the definition of “Alternative Currency” withoutthe written consent of each Lender; or (g) change any provision of this Section or the definition of “RequiredLenders” or any other provision hereof specifying the number or percentage ofLenders required to amend, waive or otherwise modify any rights hereunder ormake any determination or grant any consent hereunder, without the writtenconsent of each Lender;and, provided further, that (i) no amendment, waiver or consent shall, unless inwriting and signed by the L/C Issuer in addition to the Lenders required above,affect the rights or duties of the L/C Issuer under this Agreement or any IssuerDocument relating to any Letter of Credit issued or to be issued by it; (ii) noamendment, waiver or consent shall, unless in writing and signed by the SwingLine Lender in addition to the Lenders required above, affect the rights orduties of the Swing Line Lender under this Agreement; (iii) no amendment, waiveror consent shall, unless in writing and signed by the Administrative Agent inaddition to the Lenders required above, affect the rights or duties of theAdministrative Agent under this Agreement or any other Loan Document; (iv)Section 10.06(h) may not be amended, waived or otherwise modified without theconsent of each Granting Lender all or any part of whose Loans are being fundedby an SPC at the time of such amendment, waiver or other modification; and (v)each Fee Letter may be amended, or rights or privileges thereunder waived, in awriting executed only by the parties thereto. Notwithstanding anything to thecontrary herein, no Defaulting Lender shall have any right to approve ordisapprove any amendment, waiver or consent hereunder, except that theCommitment of such Lender may not be increased or extended without the consentof such Lender. 10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION. (a) Notices Generally. Except in the case of notices and othercommunications expressly permitted to be given by telephone (and except asprovided in subsection (b) below), all notices and other communications providedfor herein shall be in writing and shall be delivered by hand or overnightcourier service, mailed by certified or registered mail or sent by telecopier asfollows, and all notices and other communications expressly permitted hereunderto be given by telephone shall be made to the applicable telephone number, asfollows: (i) if to the Company, the Administrative Agent, the L/C Issuer or theSwing Line Lender, to the address, telecopier number, electronic mail address ortelephone number specified for such Person on Schedule 10.02; and (ii) if to any other Lender, to the address, telecopier number, electronicmail address or telephone number specified in its Administrative Questionnaire. 86Notices sent by hand or overnight courier service, or mailed by certified orregistered mail, shall be deemed to have been given when received; notices sentby telecopier shall be deemed to have been given when sent (except that, if notgiven during normal business hours for the recipient, shall be deemed to havebeen given at the opening of business on the next business day for therecipient). Notices delivered through electronic communications to the extentprovided in subsection (b) below, shall be effective as provided in suchsubsection (b). (b) Electronic Communications. Notices and other communications to theLenders and the L/C Issuer hereunder may be delivered or furnished by electroniccommunication (including e-mail and Internet or intranet websites) pursuant toprocedures approved by the Administrative Agent, provided that the foregoingshall not apply to notices to any Lender or the L/C Issuer pursuant to ArticleII if such Lender or the L/C Issuer, as applicable, has notified theAdministrative Agent that it is incapable of receiving notices under suchArticle by electronic communication. The Administrative Agent or the Companymay, in its discretion, agree to accept notices and other communications to ithereunder by electronic communications pursuant to procedures approved by it,provided that approval of such procedures may be limited to particular noticesor communications. Unless the Administrative Agent otherwise prescribes, (i) notices andother communications sent to an e-mail address shall be deemed received upon thesender’s receipt of an acknowledgement from the intended recipient (such as bythe “return receipt requested” function, as available, return e-mail or otherwritten acknowledgement), provided that if such notice or other communication isnot sent during the normal business hours of the recipient, such notice orcommunication shall be deemed to have been sent at the opening of business onthe next business day for the recipient, and (ii) notices or communicationsposted to an Internet or intranet website shall be deemed received by any Lenderupon the deemed receipt by the intended recipient at its e-mail address asdescribed in the foregoing clause (i) of notification that such notice orcommunication is available and identifying the website address therefor. (c) Change of Address, Etc. Each of the Company, the Administrative Agent,the L/C Issuer and the Swing Line Lender may change its address, telecopier ortelephone number for notices and other communications hereunder by notice to theother parties hereto. Each other Lender may change its address, telecopier ortelephone number for notices and other communications hereunder by notice to theCompany, the Administrative Agent, the L/C Issuer and the Swing Line Lender. (d) Reliance by Administrative Agent, L/C Issuer and Lenders. TheAdministrative Agent, the L/C Issuer and the Lenders shall be entitled to relyand act upon any notices (including telephonic Committed Loan Notices and SwingLine Loan Notices) purportedly given by or on behalf of the Company even if (i)such notices were not made in a manner specified herein, were incomplete or werenot preceded or followed by any other form of notice specified herein, or (ii)the terms thereof, as understood by the recipient, varied from any confirmationthereof. The Company shall indemnify the Administrative Agent, the L/C Issuer,each Lender and the Related Parties of each of them from all losses, costs,expenses and liabilities resulting from the reliance by such Person on eachnotice purportedly given by or on behalf of the Company. All telephonic noticesto and other telephonic communications with the 87Administrative Agent may be recorded by the Administrative Agent, and each ofthe parties hereto hereby consents to such recording. 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/CIssuer or the Administrative Agent to exercise, and no delay by any such Personin exercising, any right, remedy, power or privilege hereunder shall operate asa waiver thereof; nor shall any single or partial exercise of any right, remedy,power or privilege hereunder preclude any other or further exercise thereof orthe exercise of any other right, remedy, power or privilege. The rights,remedies, powers and privileges herein provided are cumulative and not exclusiveof any rights, remedies, powers and privileges provided by law. 10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) Costs and Expenses. The Company shall pay (i) all reasonableout-of-pocket expenses incurred by the Administrative Agent and its Affiliates(including the reasonable fees, charges and disbursements of counsel for theAdministrative Agent), in connection with the syndication of the creditfacilities provided for herein, the preparation, negotiation, execution,delivery and administration of this Agreement and the other Loan Documents orany amendments, modifications or waivers of the provisions hereof or thereof(whether or not the transactions contemplated hereby or thereby shall beconsummated), (ii) all reasonable out-of-pocket expenses incurred by the L/CIssuer in connection with the issuance, amendment, renewal or extension of anyLetter of Credit or any demand for payment thereunder and (iii) allout-of-pocket expenses incurred by the Administrative Agent, any Lender or theL/C Issuer (including the fees, charges and disbursements of any counsel for theAdministrative Agent, any Lender or the L/C Issuer), and shall pay all fees andtime charges for attorneys who may be employees of the Administrative Agent, anyLender or the L/C Issuer, in connection with the enforcement or protection ofits rights (A) in connection with this Agreement and the other Loan Documents,including its rights under this Section, or (B) in connection with the Loansmade or Letters of Credit issued hereunder, including all such out-of-pocketexpenses incurred during any workout, restructuring or negotiations in respectof such Loans or Letters of Credit. (b) Indemnification by the Company. Whether or not the transactionscontemplated hereby are consummated, the Company shall indemnify, defend andhold harmless the Administrative Agent (and any sub-agent thereof), each Lenderand the L/C Issuer, and each Related Party of any of the foregoing Persons(each, an “Indemnified Person”) from and against any and all liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs,charges, expenses and disbursements (including all reasonable out-of-pocket feesand disbursements of any law firm or other external counsel, the allocated costsof internal legal services and all disbursements of internal counsel) of anykind or nature whatsoever, including, without limitation, any civil penalty orfine assessed by OFAC, which may at any time (including at any time followingrepayment of the Loans and the termination, resignation or replacement of theAdministrative Agent or replacement of any Lender) be imposed on, incurred by orasserted against any such Person in any way relating to or arising out of thisAgreement or any Loan Document, or the transactions contemplated hereby, or anyaction taken or omitted by any such Person under or in connection with any ofthe foregoing, including with respect to any investigation, litigation orproceeding (including any Insolvency Proceeding or appellate proceeding) relatedto or arising out of this Agreement or the Loans or the use of the proceeds 88thereof, or related to any Alternative Currency transactions entered into inconnection herewith, whether or not any Indemnified Person is a party thereto(all the foregoing, collectively, the “Indemnified Liabilities”); provided, thatthe Company shall have no obligation hereunder to any Indemnified Person withrespect to Indemnified Liabilities to the extent resulting from the grossnegligence or willful misconduct of such Indemnified Person. The agreements inthis Section shall survive the termination of the Commitments and payment of allother Obligations. (c) Reimbursement by Lenders. To the extent that the Company for anyreason fails to indefeasibly pay any amount required under subsection (a) or (b)of this Section to be paid by it to the Administrative Agent (or any sub- agentthereof), the L/C Issuer or any Related Party of any of the foregoing, eachLender severally agrees to pay to the Administrative Agent (or any suchsub-agent), the L/C Issuer or such Related Party, as the case may be, suchLender’s Applicable Percentage (determined as of the time that the applicableunreimbursed expense or indemnity payment is sought) of such unpaid amount,provided that the unreimbursed expense or indemnified loss, claim, damage,liability or related expense, as the case may be, was incurred by or assertedagainst the Administrative Agent (or any such sub-agent) or the L/C Issuer inits capacity as such, or against any Related Party of any of the foregoingacting for the Administrative Agent (or any such sub-agent) or L/C Issuer inconnection with such capacity. The obligations of the Lenders under thissubsection (c) are subject to the provisions of Section 2.13(d). (d) Unintended Recipients. Subject to Section 10.07, no Indemnified Personreferred to in subsection (b) above shall be liable for any damages arising fromthe use by unintended recipients of any information or other materialsdistributed by it through telecommunications, electronic or other informationtransmission systems in connection with this Agreement or the other LoanDocuments or the transactions contemplated hereby or thereby, except to theextent such damages result from the gross negligence or willful misconduct ofsuch Indemnified Person. (e) Payments. All amounts due under this Section shall be payable notlater than ten Business Days after demand therefor. (f) Survival. The agreements in this Section shall survive the resignationof the Administrative Agent and the L/C Issuer, the replacement of any Lender,the termination of the Aggregate Commitments and the repayment, satisfaction ordischarge of all the other Obligations. 10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalfof the Company is made to the Administrative Agent, the L/C Issuer or anyLender, or the Administrative Agent, the L/C Issuer or any Lender exercises itsright of setoff, and such payment or the proceeds of such setoff or any partthereof is subsequently invalidated, declared to be fraudulent or preferential,set aside or required (including pursuant to any settlement entered into by theAdministrative Agent, the L/C Issuer or such Lender in its discretion) to berepaid to a trustee, receiver or any other party, in connection with anyproceeding under any Debtor Relief Law or otherwise, then (a) to the extent ofsuch recovery, the obligation or part thereof originally intended to besatisfied shall be revived and continued in full force and effect as if suchpayment had not been made or such setoff had not occurred, and (b) each Lenderand 89the L/C Issuer severally agrees to pay to the Administrative Agent upon demandits applicable share (without duplication) of any amount so recovered from orrepaid by the Administrative Agent, plus interest thereon from the date of suchdemand to the date such payment is made at a rate per annum equal to theapplicable Overnight Rate from time to time in effect in the applicable currencyof such recovery or payment. The obligations of the Lenders and the L/C Issuerunder clause (b) of the preceding sentence shall survive the payment in full ofthe Obligations and the termination of this Agreement. 10.06 SUCCESSORS AND ASSIGNS. (a) Successors and Assigns Generally. The provisions of this Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that the Company maynot assign or otherwise transfer any of its rights or obligations hereunderwithout the prior written consent of the Administrative Agent and each Lenderand no Lender may assign or otherwise transfer any of its rights or obligationshereunder except (i) to an Eligible Assignee in accordance with the provisionsof subsection (b) of this Section, (ii) by way of participation in accordancewith the provisions of subsection (d) of this Section, (iii) by way of pledge orassignment of a security interest subject to the restrictions of subsection (f)of this Section, or (iv) to an SPC in accordance with the provisions ofsubsection (h) of this Section (and any other attempted assignment or transferby any party hereto shall be null and void). Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other thanthe parties hereto, their respective successors and assigns permitted hereby,Participants to the extent provided in subsection (d) of this Section and, tothe extent expressly contemplated hereby, the Related Parties of each of theAdministrative Agent, the L/C Issuer and the Lenders) any legal or equitableright, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one ormore Eligible Assignees all or a portion of its rights and obligations underthis Agreement (including all or a portion of its Commitment and the Loans(including for purposes of this subsection (b), participations in L/CObligations and in Swing Line Loans) at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company 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 90 to the Loans or the Commitment assigned, except that this subsection (ii) shall not apply to rights in respect of Bid Loans or Swing Line Loans; (iii) any assignment of a Commitment must be approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender (such approval not to be unreasonably withheld) 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 (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.Subject to acceptance and recording thereof by the Administrative Agent pursuantto subsection (c) of this Section, from and after the effective date specifiedin each Assignment and Assumption, the Eligible Assignee thereunder shall be aparty to this Agreement and, to the extent of the interest assigned by suchAssignment and Assumption, have the rights and obligations of a Lender underthis Agreement, and the assigning Lender thereunder shall, to the extent of theinterest assigned by such Assignment and Assumption, be released from itsobligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto) but shall continueto be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 withrespect to facts and circumstances occurring prior to the effective date of suchassignment. Upon request, the Company (at its expense) shall execute and delivera Note to the assignee Lender. Any assignment or transfer by a Lender of rightsor obligations under this Agreement that does not comply with this subsectionshall be treated for purposes of this Agreement as a sale by such Lender of aparticipation in such rights and obligations in accordance with subsection (d)of this Section. (c) Register. The Administrative Agent, acting solely for this purpose asan agent of the Company, shall maintain at the Administrative Agent’s Office acopy of each Assignment and Assumption delivered to it and a register for therecordation of the names and addresses of the Lenders, and the Commitments of,and principal amounts of the Loans and L/C Obligations owing to, each Lenderpursuant to the terms hereof from time to time (the “Register”). The entries inthe Register shall be conclusive, and the Company, the Administrative Agent andthe Lenders may treat each Person whose name is recorded in the Registerpursuant to the terms hereof as a Lender hereunder for all purposes of thisAgreement, notwithstanding notice to the contrary. The Register shall beavailable for inspection by each of the Company and the L/C Issuer at anyreasonable time and from time to time upon reasonable prior notice. In addition,at any time that a request for a consent for a material or substantive change tothe Loan Documents is pending, any Lender wishing to consult with other Lendersin connection therewith may request and receive from the Administrative Agent acopy of the Register. (d) Participations. Any Lender may at any time, without the consent of, ornotice to, the Company or the Administrative Agent, sell participations to anyPerson (other than a natural person or the Company or any of the Company’sAffiliates or Subsidiaries) (each, a “Participant”) in all or a portion of suchLender’s rights and/or obligations under this Agreement 91(including all or a portion of its Commitment and/or the Loans (including suchLender’s participations in L/C Obligations and/or Swing Line Loans) owing toit); provided that (i) such Lender’s obligations under this Agreement shallremain unchanged, (ii) such Lender shall remain solely responsible to the otherparties hereto for the performance of such obligations and (iii) the Company,the Administrative Agent, the Lenders and the L/C Issuer shall continue to dealsolely and directly with such Lender in connection with such Lender’s rights andobligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such aparticipation shall provide that such Lender shall retain the sole right toenforce this Agreement and to approve any amendment, modification or waiver ofany provision of this Agreement; provided that such agreement or instrument mayprovide that such Lender will not, without the consent of the Participant, agreeto any amendment, waiver or other modification described in the first proviso toSection 10.01 that affects such Participant. Subject to subsection (e) of thisSection, the Company agrees that each Participant shall be entitled to thebenefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were aLender and had acquired its interest by assignment pursuant to subsection (b) ofthis Section. To the extent permitted by law, each Participant also shall beentitled to the benefits of Section 10.08 as though it were a Lender, providedsuch Participant agrees to be subject to Section 2.14 as though it were aLender. (e) Limitations upon Participant Rights. A Participant shall not beentitled to receive any greater payment under Section 3.01 or 3.04 than theapplicable Lender would have been entitled to receive with respect to theparticipation sold to such Participant, unless the sale of the participation tosuch Participant is made with the Company’s prior written consent. A Participantthat would be a Foreign Lender if it were a Lender shall not be entitled to thebenefits of Section 3.01 unless the Company is notified of the participationsold to such Participant and such Participant agrees, for the benefit of theCompany, to comply with Section 3.01(e) as though it were a Lender. (f) Certain Pledges. Any Lender may at any time pledge or assign asecurity 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 ReserveBank; provided that no such pledge or assignment shall release such Lender fromany of its obligations hereunder or substitute any such pledgee or assignee forsuch Lender as a party hereto. (g) Electronic Execution of Assignments. The words “execution,” “signed,””signature,” and words of like import in any Assignment and Assumption shall bedeemed to include electronic signatures or the keeping of records in electronicform, each of which shall be of the same legal effect, validity orenforceability as a manually executed signature or the use of a paper-basedrecordkeeping system, as the case may be, to the extent and as provided for inany applicable law, including the Federal Electronic Signatures in Global andNational Commerce Act, the New York State Electronic Signatures and Records Act,or any other similar state laws based on the Uniform Electronic TransactionsAct. (h) Special Purpose Funding Vehicles. Notwithstanding anything to thecontrary contained herein, any Lender (a “Granting Lender”) may grant to aspecial purpose funding 92vehicle identified as such in writing from time to time by the Granting Lenderto the Administrative Agent and the Company (an “SPC”) the option to provide allor any part of any Committed Loan that such Granting Lender would otherwise beobligated to make pursuant to this Agreement; provided that (i) nothing hereinshall constitute a commitment by any SPC to fund any Committed Loan, and (ii) ifan SPC elects not to exercise such option or otherwise fails to make all or anypart of such Committed Loan, the Granting Lender shall be obligated to make suchCommitted Loan pursuant to the terms hereof or, if it fails to do so, to makesuch payment to the Administrative Agent as is required under Section2.13(b)(ii). Each party hereto hereby agrees that (i) neither the grant to anySPC nor the exercise by any SPC of such option shall increase the costs orexpenses or otherwise increase or change the obligations of the Company underthis Agreement (including its obligations under Section 3.04), (ii) no SPC shallbe liable for any indemnity or similar payment obligation under this Agreementfor which a Lender would be liable (it being understood that the Granting Lendershall remain liable for such amounts), and (iii) the Granting Lender shall forall purposes, including the approval of any amendment, waiver or othermodification of any provision of any Loan Document, remain the lender of recordhereunder. The making of a Committed Loan by an SPC hereunder shall utilize theCommitment of the Granting Lender to the same extent, and as if, such CommittedLoan were made by such Granting Lender. In furtherance of the foregoing, eachparty hereto hereby agrees (which agreement shall survive the termination ofthis Agreement) that, prior to the date that is one year and one day after thepayment in full of all outstanding commercial paper or other senior debt of anySPC, it will not institute against, or join any other Person in institutingagainst, such SPC any bankruptcy, reorganization, arrangement, insolvency, orliquidation proceeding under the laws of the United States or any State thereof.Notwithstanding anything to the contrary contained herein, any SPC may (i) withnotice to, but without prior consent of the Company and the Administrative Agentand without paying any processing fee therefor, assign all or any portion of itsright to receive payment with respect to any Committed Loan to the GrantingLender and (ii) disclose on a confidential basis any non-public informationrelating to its funding of Committed Loans to any rating agency, commercialpaper dealer or provider of any surety or guarantee or credit or liquidityenhancement to such SPC. (i) Resignation as L/C Issuer or Swing Line Lender after Assignment.Notwithstanding anything to the contrary contained herein, if at any time Bankof America assigns all of its Commitment and Loans pursuant to subsection (b)above, Bank of America may, (i) upon 30 days’ notice to the Company and theLenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Company,resign as Swing Line Lender. In the event of any such resignation as L/C Issueror Swing Line Lender, the Company shall be entitled to appoint from among theLenders a successor L/C Issuer or Swing Line Lender hereunder; provided,however, that no failure by the Company to appoint any such successor shallaffect the resignation of Bank of America as L/C Issuer or Swing Line Lender, asthe case may be. If Bank of America resigns as L/C Issuer, it shall retain allthe rights and obligations of the L/C Issuer hereunder with respect to allLetters of Credit outstanding as of the effective date of its resignation as L/CIssuer and all L/C Obligations with respect thereto (including the right torequire the Lenders to make Base Rate Committed Loans or fund riskparticipations in Unreimbursed Amounts pursuant to Section 2.04(c)). If Bank ofAmerica resigns as Swing Line Lender, it shall retain all the rights of theSwing Line Lender provided for hereunder with respect to Swing Line Loans madeby it and outstanding as of the effective date of such resignation, includingthe right to require the 93Lenders to make Base Rate Committed Loans or fund risk participations inoutstanding Swing Line Loans pursuant to Section 2.05(c). 10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each Lenderagrees to take and to cause its Affiliates to take normal and reasonableprecautions and exercise due care to maintain the confidentiality of allinformation identified as “confidential” or “secret” by the Company and providedto it by the Company or any Subsidiary, or by the Administrative Agent on theCompany’s or such Subsidiary’s behalf, under this Agreement or any other LoanDocument, and neither it nor any of its Affiliates shall use any suchinformation other than in connection with or in enforcement of this Agreementand the other Loan Documents or in connection with other business now orhereafter existing or contemplated with the Company or any Subsidiary; except tothe extent such information (i) was or becomes generally available to the publicother than as a result of disclosure by the Lender, or (ii) was or becomesavailable on a non-confidential basis from a source other than the Company,provided that such source is not bound by a confidentiality agreement with theCompany known to the Lender; provided, however, that any Lender may disclosesuch information (A) at the request or pursuant to any requirement of anyGovernmental Authority to which the Lender is subject or in connection with anexamination of such Lender by any such authority; (B) pursuant to subpoena orother court process; (C) when required to do so in accordance with theprovisions of any applicable Requirement of Law; (D) to the extent reasonablyrequired in connection with any litigation or proceeding to which theAdministrative Agent, any Lender or their respective Affiliates may be party;(E) to the extent reasonably required in connection with the exercise of anyremedy hereunder or under any other Loan Document; (F) to such Lender’sindependent auditors and other professional advisors; (G) to any Participant orEligible Assignee, actual or potential, provided that such Person agrees inwriting to keep such information confidential to the same extent required of theLenders hereunder; (H) as to any Lender or its Affiliate, as expressly permittedunder the terms of any other document or agreement regarding confidentiality towhich the Company or any Subsidiary is party or is deemed party with such Lenderor such Affiliate; (I) to its Affiliates, provided such Affiliate agrees to usesuch information solely in connection with this Agreement and agrees in writingto keep such information confidential; and (J) to any actual or proposedcounterparty (or its advisors) to any swap or derivative transaction relating tothe Company and its obligations (with the consent of the Company, such consentnot to be unreasonably withheld or delayed, if such counterparty is not acommercial bank), provided that such Person agrees in writing to keep suchinformation confidential to the same extent required of the Lenders hereunder.Any Person required to maintain the confidentiality of information as providedin this Section shall be considered to have complied with its obligation to doso if such Person has exercised the same degree of care to maintain theconfidentiality of such information as such Person would accord to its ownconfidential information. 10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and becontinuing, each Lender, the L/C Issuer and each of their respective Affiliatesis hereby authorized at any time and from time to time, to the fullest extentpermitted by applicable law, to set off and apply any and all deposits (generalor special, time or demand, provisional or final, in whatever currency) at anytime held and other obligations (in whatever currency) at any time owing by suchLender, the L/C Issuer or any such Affiliate to or for the credit or the accountof the Company against any and all of the obligations of the Company now orhereafter existing under this Agreement or any other Loan Document to suchLender or the L/C Issuer, irrespective of 94whether or not such Lender or the L/C Issuer shall have made any demand underthis Agreement or any other Loan Document and although such obligations of theCompany may be contingent or unmatured or are owed to a branch or office of suchLender or the L/C Issuer different from the branch or office holding suchdeposit or obligated on such indebtedness. The rights of each Lender, the L/CIssuer and their respective Affiliates under this Section are in addition toother rights and remedies (including other rights of setoff) that such Lender,the L/C Issuer or their respective Affiliates may have. Each Lender and the L/CIssuer agrees to notify the Company and the Administrative Agent promptly afterany such setoff and application, provided that the failure to give such noticeshall not affect the validity of such setoff and application. 10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrarycontained in any Loan Document, the interest paid or agreed to be paid under theLoan Documents shall not exceed the maximum rate of non-usurious interestpermitted by applicable Law (the “Maximum Rate”). If the Administrative Agent orany Lender shall receive interest in an amount that exceeds the Maximum Rate,the excess interest shall be applied to the principal of the Loans or, if itexceeds such unpaid principal, refunded to the Company. In determining whetherthe interest contracted for, charged, or received by the Administrative Agent ora Lender exceeds the Maximum Rate, such Person may, to the extent permitted byapplicable Law, (a) characterize any payment that is not principal as anexpense, fee, or premium rather than interest, (b) exclude voluntary prepaymentsand the effects thereof, and (c) amortize, prorate, allocate, and spread inequal or unequal parts the total amount of interest throughout the contemplatedterm of the Obligations hereunder. 10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may beexecuted in counterparts (and by different parties hereto in differentcounterparts), each of which shall constitute an original, but all of which whentaken together shall constitute a single contract. This Agreement and the otherLoan Documents constitute the entire contract among the parties relating to thesubject matter hereof and supersede any and all previous agreements andunderstandings, oral or written, relating to the subject matter hereof. Exceptas provided in Section 4.01, this Agreement shall become effective when it shallhave been executed by the Administrative Agent and when the Administrative Agentshall have received counterparts hereof that, when taken together, bear thesignatures of each of the other parties hereto. Delivery of an executedcounterpart of a signature page of this Agreement by telecopy shall be effectiveas delivery of a manually executed counterpart of this Agreement. 10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations andwarranties made hereunder and in any other Loan Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof. Suchrepresentations and warranties have been or will be relied upon by theAdministrative Agent and each Lender, regardless of any investigation made bythe Administrative Agent or any Lender or on their behalf and notwithstandingthat the Administrative Agent or any Lender may have had notice or knowledge ofany Default at the time of any Credit Extension, and shall continue in fullforce and effect as long as any Loan or any other Obligation hereunder shallremain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. 95 10.12 SEVERABILITY. If any provision of this Agreement or the other LoanDocuments is held to be illegal, invalid or unenforceable, (a) the legality,validity and enforceability of the remaining provisions of this Agreement andthe other Loan Documents shall not be affected or impaired thereby and (b) theparties shall endeavor in good faith negotiations to replace the illegal,invalid or unenforceable provisions with valid provisions the economic effect ofwhich comes as close as possible to that of the illegal, invalid orunenforceable provisions. The invalidity of a provision in a particularjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction. 10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation underSection 3.04, or if the Company is required to pay any additional amount to anyLender or any Governmental Authority for the account of any Lender pursuant toSection 3.01, if any Lender is a Defaulting Lender or exercises its rights underSection 3.02 or if any other circumstance exists hereunder that gives theCompany the right to replace a Lender as a party hereto, then the Company may,at its sole expense and effort, upon notice to such Lender and theAdministrative Agent, require such Lender to assign and delegate, withoutrecourse (in accordance with and subject to the restrictions contained in, andconsents required by, Section 10.06), all of its interests, rights andobligations under this Agreement and the related Loan Documents to an assigneethat shall assume such obligations (which assignee may be another Lender, if aLender accepts such assignment), provided that: (a) the Company shall have paid to the Administrative Agent the assignmentfee specified in Section 10.06(b); (b) such Lender shall have received payment of an amount equal to theoutstanding principal of its Loans and L/C Advances, accrued interest thereon,accrued fees and all other amounts payable to it hereunder and under the otherLoan Documents (including any amounts under Section 3.05) from the assignee (tothe extent of such outstanding principal and accrued interest and fees) or theCompany (in the case of all other amounts); (c) in the case of any such assignment resulting from a Lender exercisingits rights under Section 3.02, a claim for compensation under Section 3.04 orpayments required to be made pursuant to Section 3.01, such assignment willresult in a reduction in such compensation or payments thereafter; and (d) such assignment does not conflict with applicable Laws. 10.14 GOVERNING LAW; JURISDICTION; ETC. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED INACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS. (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY ANDUNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVEJURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS SITTING IN COOK COUNTY ANDOF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS, ANDANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING 96ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FORRECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETOIRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCHACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURTOR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION ORPROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BYSUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THISAGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THEADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRINGANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTAGAINST THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY ANDUNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANYOBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTIONOR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THEPARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCHACTION OR PROCEEDING IN ANY SUCH COURT. (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICEOF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THISAGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANYOTHER MANNER PERMITTED BY APPLICABLE LAW. 10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ATRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF ORRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONSCONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHERTHEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT ORATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCHOTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THEFOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVEBEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONGOTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 97 10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (ashereinafter defined) and the Administrative Agent (for itself and not on behalfof any Lender) hereby notifies the Company that pursuant to the requirements ofthe 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 thatidentifies the Company, which information includes the name and address of theCompany and other information that will allow such Lender or the AdministrativeAgent, as applicable, to identify the Company in accordance with the Act. 10.17 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in anycourt, it is necessary to convert a sum due hereunder or any other Loan Documentin one currency into another currency, the rate of exchange used shall be thatat which in accordance with normal banking procedures the Administrative Agentcould purchase the first currency with such other currency on the Business Daypreceding that on which final judgment is given. The obligation of the Companyin respect of any such sum due from it to the Administrative Agent or theLenders hereunder or under the other Loan Documents shall, notwithstanding anyjudgment in a currency (the “Judgment Currency”) other than that in which suchsum is denominated in accordance with the applicable provisions of thisAgreement (the “Agreement Currency”), be discharged only to the extent that onthe Business Day following receipt by the Administrative Agent of any sumadjudged to be so due in the Judgment Currency, the Administrative Agent may inaccordance with normal banking procedures purchase the Agreement Currency withthe Judgment Currency. If the amount of the Agreement Currency so purchased isless than the sum originally due to the Administrative Agent from the Company inthe Agreement Currency, the Company agrees, as a separate obligation andnotwithstanding any such judgment, to indemnify the Administrative Agent or thePerson to whom such obligation was owing against such loss. If the amount of theAgreement Currency so purchased is greater than the sum originally due to theAdministrative Agent in such currency, the Administrative Agent agrees to returnthe amount of any excess to the Company (or to any other Person who may beentitled thereto under applicable law). 10.18 ENTIRE AGREEMENT. This Agreement and the other Loan Documentsrepresent the final agreement among the parties and may not be contradicted byevidence of prior, contemporaneous, or subsequent oral agreements of theparties. There are no unwritten oral agreements among the parties. [SIGNATURE PAGES FOLLOW] 98 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beduly executed as of the date first above written. IDEX CORPORATION By: ________________________________________ Title: _____________________________________ BANK OF AMERICA, N.A., as Administrative Agent By: ________________________________________ Title: _____________________________________ BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender By: ________________________________________ Title: _____________________________________ WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender By: ________________________________________ Title: _____________________________________ ABN AMRO BANK, N.V. By: ________________________________________ Title: _____________________________________ MIZUHO CORPORATE BANK, LTD. By: ________________________________________ Title: _____________________________________ U.S. BANK NATIONAL ASSOCIATION By: ________________________________________ Title: _____________________________________ THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH By: ________________________________________ Title: _____________________________________ BANK OF CHINA By: ________________________________________ Title: _____________________________________ WELLS FARGO BANK, NATIONAL ASSOCIATION By: ________________________________________ Title: _____________________________________ BANCA NAZIONALE DEL LAVORO S.P.A. By: ________________________________________ Title: _____________________________________ THE BANK OF NEW YORK By: ________________________________________ Title: _____________________________________ BARCLAYS BANK PLC By: ________________________________________ Title: _____________________________________ CALYON NEW YORK BRANCH By: ________________________________________ Title: _____________________________________ FIFTH THIRD BANK By: ________________________________________ Title: _____________________________________ JPMORGAN CHASE BANK By: ________________________________________ Title: _____________________________________ NATIONAL CITY BANK By: ________________________________________ Title: _____________________________________ THE NORTHERN TRUST COMPANY By: ________________________________________ Title: _____________________________________ PNC BANK N.A. By: ________________________________________ Title: _____________________________________ SCHEDULE 1.01 MANDATORY COST FORMULAE1. 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 practicable thereafter) the Administrative 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 Administrative 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 Administrative Agent will, at the request of the Company or any Lender, deliver to the Company 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 Administrative Agent. This percentage will be certified by such Lender in its notice to the Administrative Agent as 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 Administrative Agent as follows: (a) in relation to any Loan in Sterling: AB+C(B-D)+E x 0.01 —————— 100-(A+C) per cent per annum (b) in relation to any Loan in any currency other than Sterling: E x 0.01 ——— 300 per cent per annumWhere: “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. Schedule 1.01 Page 1 “B” is the percentage rate of interest (excluding the Applicable Rate, the Mandatory Cost and any additional interest charged on overdue amounts pursuant to Section 2.09(b) 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 Administrative Agent on interest bearing Special Deposits. “E” is designed to compensate Lenders for amounts payable under the Fees Regulations and is calculated by the Administrative Agent as being the average of the most recent rates of charge supplied by the Lenders to the Administrative Agent pursuant to paragraph 7 below and expressed in pounds per (L)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 Regulations” means 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 Regulations under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Regulations 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 Regulations.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 Administrative Agent or the Company, 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 Administrative Agent and the Company, the rate of charge payable by such Lender to the Financial Services Authority pursuant to the Fees Regulations 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 (L),000,000 of the Tariff Base of such Lender. Schedule 1.01 Page 28. Each Lender shall supply any information required by the Administrative 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) its jurisdiction of incorporation and 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 Administrative Agent may reasonably require for such purpose.Each Lender shall promptly notify the Administrative Agent in writing of anychange to the information provided by it pursuant to this paragraph.9. The percentages or rates of charge of each Lender for the purpose of A, C and E above shall be determined by the Administrative 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 Administrative Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits, Special Deposits and the Fees Regulations are the same as those of a typical bank from its jurisdiction of incorporation with a Lending Office in the same jurisdiction as such Lender’s Lending Office.10. The Administrative 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 Administrative 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 Administrative 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 Administrative Agent may from time to time, after consultation with the Company 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. Schedule 1.01 Page 3 SCHEDULE 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES

LENDER COMMITMENT APPLICABLE PERCENTAGE- ———————————– ———— ——————— Bank of America, N.A. $ 62,500,000 10.416666667%Wachovia Bank, National Association $ 62,500,000 10.416666667%LaSalle Bank, National Association $ 45,000,000 7.500000000%Mizuho Corporate Bank, Ltd. $ 45,000,000 7.500000000%U.S. Bank National Association $ 45,000,000 7.500000000%The Bank of Tokyo-Mitsubishi, Ltd. $ 45,000,000 7.500000000%Bank of China $ 35,000,000 5.833333333%Wells Fargo Bank, National Association $ 35,000,000 5.833333333%Banca Nazionale del Lavoro SpA $ 25,000,000 4.166666667%The Bank of New York $ 25,000,000 4.166666667%Barclays Bank Plc $ 25,000,000 4.166666667%CALYON New York Branch $ 25,000,000 4.166666667%Fifth Third Bank (Chicago) $ 25,000,000 4.166666667%JPMorgan Chase Bank, N.A. $ 25,000,000 4.166666667%National City Bank of the Midwest $ 25,000,000 4.166666667%The Northern Trust Company $ 25,000,000 4.166666667%PNC Bank National Association $ 25,000,000 4.166666667% ============ =============TOTAL $600,000,000 100.000000003%

Schedule 2.01 Page 1 SCHEDULE 2.04 EXISTING LETTERS OF CREDITAPPLICANT: FLUID MANAGEMENT LTD. PARTNERSHIP

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7279295 07/01/05 $310,280.00 557 days

APPLICANT: IDEX CORPORATION

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7319227 12/31/04 $3,390,000.00 375 days

APPLICANT: PULSAFEEDER INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7411288 12/31/04 $6,090.00 660 days

APPLICANT: PULSAFEEDER, INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7413154 07/30/05 $ 4,046.00 596 days7411298 12/01/05 $ 30,000.00 993 days

APPLICANT: PULSAFEEDER, INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7413113 06/30/05 $2,049.00 567 days 7412303 03/31/06 $ 818.20 914 days

APPLICANT: VIKING PUMP INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7411626 04/30/05 $3,600.00 715 days 7414600 05/30/06 $8,450.00 704 days

SCHEDULE 2.04 Page 1APPLICANT: VIKING PUMP, INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7415388 05/30/05 $ 228,687.00 188 days 7415389 05/30/05 $ 69,116.00 188 days 7413110 06/30/05 $ 27,638.00 567 days 7413521 07/30/05 $ 29,300.00 543 days 7413522 09/15/05 $ 12,700.00 590 days

APPLICANT: VIKING PUMP, INC.

CurrentL/C Number Expiry Date Outstanding Amount Tenor- ———- ———– —————— ——– 7413938 11/15/05 $10,000.00 599 days

Schedule 2.04 Page 2 SCHEDULE 5.05 LITIGATION None. Schedule 5.05 Page 1 SCHEDULE 5.07 ERISA MATTERS None. Schedule 5.07 Page 1 SCHEDULE 5.11 PERMITTED LIABILITIES None. Schedule 5.11 Page 1 SCHEDULE 5.12 ENVIRONMENTAL MATTERS None. Schedule 5.12 Page 1 SCHEDULE 5.14 EXISTING SUBSIDIARIES AND MINORITY INTERESTSPART AIDEX CORPORATIONIDEX INDIA PVT. LTD.IDEX HOLDINGS, INC. Dominator Pump AB Viking Pump (Europe) Ltd. Johnson Pump (UK) Ltd. Viking Pump of Canada, Inc.IDEX LEASING GMBHIDEX RECEIVABLES CORPORATIONIDEX SERVICE CORPORATIONBAND-IT-IDEX, INC. Band-It Company Ltd. Band-It Clamps (Asia) Pte., Ltd. Band-It R.S.A. (Pty) Ltd. (51%)FAST & FLUID MANAGEMENT SRL FAST & Fluid Management Iberica S.A. FAST & Fluid Management U.K. Ltd. Fast & Fluid Management France SARLFLUID MANAGEMENT, INC. (F/K/A FM SALES) FM Investment, Inc. FM Delaware, Inc. Fluid Management Operations, LLC FAST & Fluid Management Australia Pty., Ltd. Fluid Management Canada, Inc. Fluid Management Servicos e Vendas Ltd. IDEX Europe GmbH FAST & Fluid Management Europe B.V. Fluid Management U.K., Ltd. Fluid Management Espana SLU FAST & Fluid Management Eastern Europe Sp. z o.o. IDEX Technology (Suzhou) Ltd. IDEX Trading (Shanghai) Co., Ltd. Tianjin Dinglee Machine and Motor Co., Ltd. Manfred Vetter Verwaltungs Manfred Vetter GmbH & Co., KG Fluid Management GmbH Lukas Hydraulik GmbH Schedule 5.14 Page 1GAST MANUFACTURING, INC. Gast Asia, Inc. Gast Manufacturing Company Ltd.HALE PRODUCTS, INC. Hale Products Europe GmbH Godiva Products Limited Godiva Limited Hale Products Europe Limited Class 1, Inc.KNIGHT, LLC Knight, Inc. Knight International B.V. Knight U. K., Ltd. Knight Equipment Australia Pty., Ltd. Knight Equipment (Canada) Ltd. Knight South Europe S.L.RHEODYNE, LLC Systec, LLC Rheodyne Europe GmbHLUBRIQUIP, INC.LIQUID CONTROLS, LLC Liquid Controls (India) Pvt. Ltd. S.A.M.P.I. S.p.A. M. Bos S.r.l. Corken, Inc. Sponsler, Inc. Liquid Controls Europe, S.p.A.MICROPUMP, INC. Micropump Limited Ismatec SA Ismatec GmbH Trebor International, Inc.PULSAFEEDER, INC. Halox Technologies, Inc. (f/k/a HT Acq. Corp.) Pulsafeeder Europe B.V. IDEX Asia Pacific Pte. Ltd. Classic Engineering, Inc.SCIVEX, INC. Upchurch Scientific, Inc. Sapphire Engineering, Inc. J. L. White Technical Sales Schedule 5.14 Page 2SIGNFIX HOLDINGS LIMITED TESPA GmbHVERSA-MATIC TOOL, INC. Pumper Parts LLCVIKING PUMP, INC. Viking Pump Latin America S.A. de C.V.WARREN RUPP, INC. Warren Rupp (Europe) Ltd. Blagdon Pump Holdings Ltd. Pumper Parts Europe, Ltd.WRIGHTECH, INC.PART BHemina S.p.A. 30% owned by Liquid Controls, LLCVersa-Matic Asia Sdn Bhd 50% owned by Versa-Matic Tool, Inc. Schedule 5.14 Page 3 SCHEDULE 5.15 INSURANCE MATTERS None. Schedule 5.15 Page 1 SCHEDULE 7.01 PERMITTED LIENS1. Liens relating to a capital lease of Corken, Inc.’s office and manufacturing facility securing obligations in a principal amount not exceeding $2,000,000 under and pursuant to that certain Lease between Corken, Inc. and 3805 General Partnership dated as of August 28, 1990.2. Liens on certain assets of FAST, S.r.l. in connection with subsidiary indebtedness not exceeding $5,000,000 which Liens had initially been granted at the time it became a Subsidiary and were not created in anticipation thereof.3. Liens on certain assets of Liquid Controls (India) Pvt. Ltd. and S.A.M.P.I. Srl. in connection with subsidiary and joint venture indebtedness not exceeding $3,000,000 which Liens had initially been granted at the time it became a Subsidiary and were not created in anticipation thereof.4. Liens on certain assets of Knight International B.V. in connection with subsidiary indebtedness not exceeding $1,000,000 which Liens had initially been granted at the time it became a Subsidiary and were not created in anticipation thereof. Schedule 7.01 Page 1 SCHEDULE 7.04 PERMITTED INVESTMENTS1. 30% interest in Hemina, SpA currently carried on the financial statements at an amount not exceeding $100,000.2. 50% interest in Versa-Matic Asia Sdn Bhd currently carried on the financial statements at an amount not exceeding $100,000. Schedule 7.04 Page 1 SCHEDULE 7.05 PERMITTED INDEBTEDNESS1. Liquid Controls: Capital lease obligations of Corken, Inc.’s in connection with the lease of its office and manufacturing facility in a principal amount not exceeding $2,000,000 pursuant to the Lease between Corken, Inc. and 3805 General Partnership dated as of August 28, 1990. The imputed interest rate is 12.0%.2. Liquid Controls: SAMPI SpA has unwritten arrangements with its banks (Banca Toscana, Banca Intesa, Banca Nazionale Del Lavoro (“BNL”), and Cassa Risp. Pistoia & Pescia) that provide for short-term (90 to 180 days) advances on bank drafts, certain receivables, and provide for general funding requirements (providing up to Euro 3.95 million). The rates range from 3.7% to 8.5%.3. Liquid Controls: Mortgage obligation between M.BOS srl (a wholly-owned subsidiary of SAMPI SpA) and Locafit (the leasing branch of BNL) in connection with the recent construction of a new office and manufacturing facility in Altopascio, Italy in a principal amount not exceeding Euro 3.5 million, with interest payable quarterly at the 3-month Euribor rate. The obligation is payable in monthly installments over 12 years.4. Halox Technologies, Inc.: State of Connecticut Loan of $1,750,000 plus interest of $457,932 for a total of $2,207,932 due on 6/1/08.5. Mortgage obligations of Knight Europe BV, in connection with the office and manufacturing facility: Original Mortgage amount NLG 2,000,000 Current mortgage amount outstanding as per November 30th: EUR 848,403. Current Interest rate: 4.30% Mortgage ends September 30, 2012. Mortgage with the Rabobank Enschede-Haaksbergen, the Netherlands.6. Overdraft facility for Knight Europe BV bank account in an amount of EUR 54,378.7. Fast & Fluid Management Italy: Financial Leasing with Locafit (BNL Group) for facility in Cinisello Balsamo (Milan). The outstanding amount for principal is Euro 723,000 and the last installment will due in September 2006. The interest rate is Euribor without spread.8. Fast and Fluid Management Australia Pty Ltd: Standby letter issued by Bank of America for AUD400,000 securing bank overdraft facility.9. IDEX Corporation: bank overdraft facility for EUR 1,134,451. Schedule 7.05 Page 1 SCHEDULE 7.07 CONTINGENT OBLIGATIONS1. Guaranty of Trebor International, Inc. in connection with the facility lease agreement with Solana, L.L.C. Five months remaining on lease (expires May 31, 2005) at $16,000 per month for a total of $80,000.2. Certain IDEX units have entered into license agreements with IPN allowing for these units to exclusively utilize certain of IPN’s technologies. If IDEX elects to make or have products made using these technologies from a vender other than IPN then royalties must be paid to IPN based on a sliding scale. This agreement can be cancelled on 12/30/2008 with 30 days notice.3. Fluid Management has purchase guarantees in which Fluid Management must guarantee minimum stocking levels with certain of its vendors. As of 12/31/03 Fluid Management had $788,000 in such purchase guarantees.4. Halox Technologies, Inc./State of Connecticut Loan: If there are not 100 Connecticut employees as of 6/30/06, a $10,000 penalty must be paid to the State of Connecticut for each employee under the 100 employee level. For example, there are currently 16 employees in Connecticut. If this level were to remain at 16 then on 6/30/06 we would owe (100-16 = 84 x $10,000 = $840,000) the state $840,000. Schedule 7.07 Page 1 SCHEDULE 10.02 ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICES

COMPANY: ADMINISTRATIVE AGENT ACCOUNT INFORMATION: IDEX Corporation Account No. (for Dollars): 3570836479630 Dundee Road, Suite 400 Ref: Idex, Attn: Credit ServicesNorthbrook, Illinois 60062 ABA# 111000012Attention: Douglas C. Lennox, Frank J, Notaro, Dominic A. RomeoTelephone: (847) 498-7070 Account No. (for Euro): 65280019Telecopier: (847) 498-9123 Ref: IdexElectronic Mail: dlennox@idexcorp.com, Swift Address: BOFAGB22fnotaro@idexcorp.com;dromeo@idexcorp.comWebsite Address: www.idexcorp.com Account No. (for Sterling): 65280027 Ref: IdexADMINISTRATIVE AGENT: London Sort Code: 16-50-50 Swift Address: BOFAGB22Administrative Agent’s Office(for payments and Requests for Credit Extensions): Account No. (for Yen): 606490661046 (Bank ofBank of America, N.A. America, Tokyo)850 Gateway Blvd. Ref: IdexMail Code: CA4-706-05-09 Swift Address: BOFAJPJXConcord, California 94520-3282Attention: Kathy Eddy Account No. (for Swiss Francs): 601490661012 (BankTelephone: (925) 675-8458 of America, Geneva)Telecopier: (888) 969-2420 Ref: IdexElectronic Mail: kathy.eddy@bankofamerica.com Swift Address: BOFACH2XOther Notices as Administrative Agent: Account No. (for Canadian Dollars): 711465003220Bank of America, N.A. (Bank of America Canada (Transit # 01312), Toronto)1455 Market Street, 5th Floor Ref: IdexMail Code: CA5-701-05-19 Swift Address: BOFACATTSan Francisco, California 94103Attention: Anthea Del BiancoTelephone: (415) 436-2776Telecopier: (415) 503-5101Electronic Mail: Anthea.del_Bianco@bankofamerica.com

Schedule 10.02 Page 1L/C ISSUER:Bank of America, N.A.Trade Operations-Los Angeles #22621333 South Beaudry Avenue, 19th FloorMail Code: CA9-703-19-23Los Angeles, California 90017-1466Attention: Sandra Leon, Vice PresidentTelephone: (213) 345-5231Telecopier: (213) 345-0265Electronic Mail: Sandra.Leon@bankofamerica.comSWING LINE LENDER:Bank of America, N.A.850 Gateway BoulevardMail Code: CA4-706-05-09Concord, California 94520-3282]Attention: Kathy EddyTelephone: (925) 675-8458Telecopier: (888) 969-2420Electronic Mail: kathy.eddy@bankofamerica.com Schedule 10.02 Page 2 EXHIBIT A FORM OF COMMITTED LOAN NOTICE Date:______________To: Bank of America, N.A., as Administrative AgentLadies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of December14, 2004 (as amended, restated, extended, supplemented or otherwise modified inwriting from time to time, the “Agreement”; the terms defined therein being usedherein as therein defined), among IDEX Corporation, a Delaware corporation (the”Company”), the Lenders from time to time party thereto, and Bank of America,N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The undersigned hereby requests (select one): [ ] A Borrowing of Committed Loans [ ] A conversion or continuation of Loans 1. On (a Business Day). 2. In the amount of_____________________. 3. Comprised of______________________________ [Type of Committed Loan requested] 4. In the following currency:___________. 5. For Eurocurrency Rate Loans: with an Interest Period of_____ months. The Committed Borrowing, if any, requested herein complies with theprovisos to the first sentence of Section 2.01 of the Agreement. IDEX CORPORATION By:___________________________________ Name: Title: A – 1 Form of Committed Loan Notice EXHIBIT B-1 FORM OF BID REQUESTTo: Bank of America, N.A., as Administrative AgentLadies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of December14, 2004 (as amended, restated, extended, supplemented or otherwise modified inwriting from time to time, the “Agreement”; the terms defined therein being usedherein as therein defined), among IDEX Corporation, a Delaware corporation (the”Company”), the Lenders from time to time party thereto, and Bank of America,N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The Lenders are invited to make Bid Loans: 1. On _______________ (a Business Day). 2. In an aggregate amount not exceeding $ (with any sublimits set forth below). 3. Comprised of (select one): [ ] Bid Loans based on an Absolute Rate [ ] Bid Loans based on Eurocurrency Rate

INTEREST PERIOD MAXIMUM PRINCIPALBID LOAN NO. REQUESTED AMOUNT REQUESTED- ———— ————— —————— 1 _______days/mos $_________________ 2 _______days/mos $_________________ 3 _______days/mos $_________________

The Bid Borrowing requested herein complies with the requirements of theproviso to the first sentence of Section 2.03(a) of the Agreement. The Company authorizes the Administrative Agent to deliver this BidRequest to the Lenders. Responses by the Lenders must be in substantially theform of Exhibit B-2 to the Agreement and must be received by the AdministrativeAgent by the time specified in Section 2.03 of the Agreement for submittingCompetitive Bids. IDEX CORPORATION By:__________________________________ Name: Title: B-1 Form of Bid Request EXHIBIT B-2 FORM OF COMPETITIVE BID Date:______________To: Bank of America, N.A., as Administrative AgentLadies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of December14, 2004 (as amended, restated, extended, supplemented or otherwise modified inwriting from time to time, the “Agreement”; the terms defined therein being usedherein as therein defined), among IDEX Corporation, a Delaware corporation (the”Company”), the Lenders from time to time party thereto, and Bank of America,N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. In response to the Bid Request dated ____________, the undersigned offersto make the following Bid Loan(s): 1. Borrowing date:________________ (a Business Day). 2. In an aggregate amount not exceeding $ (with any sublimits set forth below). 3. Comprised of:

ABSOLUTE RATE BID OR EUROCURRENCYBID LOAN NO. INTEREST PERIOD OFFERED BID MAXIMUM MARGIN BID*- ———— ———————– —————— —————– 1 _______days/mos $_________________ (- +)________% 2 _______days/mos $_________________ (- +)________% 3 _______days/mos $_________________ (- +)________%

– ————-* Expressed in multiples of 1/100th of a basis point. B-2 – 1 Form of Competitive Bid Contact Person:_______________ Telephone:_________________ [LENDER] By:__________________________________ Name: Title:******************************************************************************** THIS SECTION IS TO BE COMPLETED BY THE COMPANY IF IT WISHES TO ACCEPT ANYOFFERS CONTAINED IN THIS COMPETITIVE BID: The offers made above are hereby accepted in the amounts set forth below:

BID LOAN NO. PRINCIPAL AMOUNT ACCEPTED- ———— ————————- ____________ $________________________________ $________________________________ $____________________

Date:______________IDEX CORPORATIONBy:______________________________ Name: Title: B-2 – 2 Form of Competitive Bid EXHIBIT C FORM OF SWING LINE LOAN NOTICE Date:______________To: Bank of America, N.A., as Swing Line Lender Bank of America, N.A., as Administrative AgentLadies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of December14, 2004 (as amended, restated, extended, supplemented or otherwise modified inwriting from time to time, the “Agreement”; the terms defined therein being usedherein as therein defined), among IDEX Corporation, a Delaware corporation (the”Company”), the Lenders from time to time party thereto, and Bank of America,N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The undersigned hereby requests a Swing Line Loan: 1. On_____________________________ (a Business Day). 2. In the amount of $_____________. The Swing Line Borrowing requested herein complies with the requirementsof the provisos to the first sentence of Section 2.05(a) of the Agreement. IDEX CORPORATION By:__________________________________ Name: Title: C – 1 Form of Swing Line Loan Notice EXHIBIT D FORM OF NOTE ____________________ FOR VALUE RECEIVED, the undersigned (the “Company”), hereby promises topay to _____________________ or registered assigns (the “Lender”), in accordancewith the provisions of the Agreement (as hereinafter defined), the principalamount of each Loan from time to time made by the Lender to the Company underthat certain Credit Agreement, dated as of December 14, 2004 (as amended,restated, extended, supplemented or otherwise modified in writing from time totime, the “Agreement”; the terms defined therein being used herein as thereindefined), among the Company, the Lenders from time to time party thereto, andBank of America, N.A., as Administrative Agent, L/C Issuer and Swing LineLender. The Company promises to pay interest on the unpaid principal amount ofeach Loan from the date of such Loan until such principal amount is paid infull, at such interest rates and at such times as provided in the Agreement.Except as otherwise provided in Section 2.05(f) of the Agreement with respect toSwing Line Loans, all payments of principal and interest shall be made to theAdministrative Agent for the account of the Lender in the currency in which suchCommitted Loan was denominated and in Same Day Funds at the AdministrativeAgent’s Office for such currency. If any amount is not paid in full when duehereunder, such unpaid amount shall bear interest, to be paid upon demand, fromthe due date thereof until the date of actual payment (and before as well asafter judgment) computed at the per annum rate set forth in the Agreement. This Note is one of the Notes referred to in the Agreement, is entitled tothe benefits thereof and may be prepaid in whole or in part subject to the termsand conditions provided therein. Upon the occurrence and continuation of one ormore of the Events of Default specified in the Agreement, all amounts thenremaining unpaid on this Note shall become, or may be declared to be,immediately due and payable all as provided in the Agreement. Loans made by theLender shall be evidenced by one or more loan accounts or records maintained bythe Lender in the ordinary course of business. The Lender may also attachschedules to this Note and endorse thereon the date, amount, currency andmaturity of its Loans and payments with respect thereto. The Company, for itself, its successors and assigns, hereby waivesdiligence, presentment, protest and demand and notice of protest, demand,dishonor and non-payment of this Note. [signature page follows] D – 1 Form of Note THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWSOF THE STATE OF ILLINOIS. IDEX CORPORATION By:_____________________________ Name: Title: D – 2 Form of Note LOANS AND PAYMENTS WITH RESPECT THERETO

CURRENCY AMOUNT OF OUTSTANDING AND END OF PRINCIPAL OR PRINCIPAL TYPE OF AMOUNT OF INTEREST INTEREST PAID BALANCE NOTATION DATE LOAN MADE LOAN MADE PERIOD THIS DATE THIS DATE MADE BY- ——- ——— ——— ——– ————- ———– ——– _______ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ _______________ _________ _________ ________ _____________ _________ ________

D – 3 Form of Note EXHIBIT E FORM OF COMPLIANCE CERTIFICATE The undersigned, being the __________________ of IDEX Corporation (the”Company”), pursuant to Section 6.02(b) of that certain Credit Agreement (asamended, restated, supplemented or otherwise modified from time to time, the”Credit Agreement”; capitalized terms used herein but not otherwise definedherein have the meanings ascribed to such terms in the Credit Agreement) datedas of December 14, 2004 by and among the Company, the several financialinstitutions from time to time party to the Credit Agreement (collectively, the”Lenders”; individually, a “Lender”), and Bank of America, N.A., as agent forthe Lenders (the “Agent”) and Wachovia Bank, National Association, assyndication agent, hereby certifies that: (i) The Company has complied and is in compliance with all the terms, covenants and conditions of the Credit Agreement, except as set forth below or on Schedule I hereto; (ii) There exists no Default or Event of Default under the Credit Agreement, except as set forth below; (iii) Except as set forth below, the representations and warranties contained in Article VI of the Credit Agreement are true and correct in all material respects on the date hereof (except to the extent such representations and warranties expressly refer to an earlier date, in which case they shall be true and correct as of such earlier date); (iv) Schedule I attached hereto sets forth financial data and computations evidencing compliance (or non-compliance) with the covenants set forth in Section 7.15 of the Credit Agreement, all of which data and computations are calculated in accordance with the terms and requirements of the Credit Agreement; and (v) The current Debt Ratings of the Company are ______ from S&P and ______ from Moody’s. Described below are the exceptions, if any, to paragraphs (i) – (iii),listing, in detail, the nature of the condition or event, the period duringwhich it has existed and the action which the Company has taken, is taking orproposes to take with respect to each such condition or event: ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ E – 1 Form of Compliance Certificate The foregoing certifications, together with the computations set forth inSchedule I hereto and the financial statements delivered with this ComplianceCertificate in support hereof, are made and delivered this _____ day of__________, 200__. IDEX CORPORATION By:__________________________________ Name:________________________________ Title:_______________________________ E – 2 Form of Compliance Certificate SCHEDULE 2 to the Compliance Certificate ($ in 000’s) For the Quarter/Year Ended_________________I. SECTION 7.15(a) – INTEREST COVERAGE RATIO. A. Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”): 1. Consolidated Net Income for Subject Period: $___________ 2. Consolidated interest expenses for Subject Period: $___________ 3. Provision for income taxes for Subject Period: $___________ 4. Interest component for Off Balance Sheet Obligations for Subject Period: $___________ 5. Depreciation expenses for Subject Period: $___________ 6. Amortization expenses for Subject Period: $___________ 7. Consolidated EBITDA (Lines II.A1 + 2 + 3 + 4 + 5 + 6): $___________ B. Consolidated Interest Expense for Subject Period: $___________ C. Consolidated Interest Coverage Ratio (Line I.A.7 {divide} Line I.B): _______to 1 Minimum required: 3.00 to 1II. SECTION 7.15(b) – LEVERAGE RATIO. A. Consolidated Debt at Statement Date: $___________ B. Consolidated EBITDA for Subject Period (Line I.A.7 above): $___________ C. Consolidated Leverage Ratio (Line II.A {divide} Line II.B): ________to 1 Maximum permitted: _____ to 1 E – 3 Form of Compliance Certificate EXHIBIT F ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this “Assignment and Assumption”) is datedas of the Effective Date set forth below and is entered into by and between[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the”Assignee”). Capitalized terms used but not defined herein shall have themeanings given to them in the Credit Agreement identified below (the “CreditAgreement”), receipt of a copy of which is hereby acknowledged by the Assignee.The Standard Terms and Conditions set forth in Annex 1 attached hereto arehereby agreed to and incorporated herein by reference and made a part of thisAssignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells andassigns to the Assignee, and the Assignee hereby irrevocably purchases andassumes from the Assignor, subject to and in accordance with the Standard Termsand Conditions and the Credit Agreement, as of the Effective Date inserted bythe Administrative Agent as contemplated below (i) all of the Assignor’s rightsand obligations as a Lender under the Credit Agreement and any other documentsor instruments delivered pursuant thereto to the extent related to the amountand percentage interest identified below of all of such outstanding rights andobligations of the Assignor under the respective facilities identified below(including, without limitation, the Letters of Credit and the Swing Line Loansincluded in such facilities(1)) and (ii) to the extent permitted to be assignedunder applicable law, all claims, suits, causes of action and any other right ofthe Assignor (in its capacity as a Lender) against any Person, whether known orunknown, arising under or in connection with the Credit Agreement, any otherdocuments or instruments delivered pursuant thereto or the loan transactionsgoverned thereby or in any way based on or related to any of the foregoing,including, but not limited to, contract claims, tort claims, malpractice claims,statutory claims and all other claims at law or in equity related to the rightsand obligations sold and assigned pursuant to clause (i) above (the rights andobligations sold and assigned pursuant to clauses (i) and (ii) above beingreferred to herein collectively as, the “Assigned Interest”). Such sale andassignment is without recourse to the Assignor and, except as expressly providedin this Assignment and Assumption, without representation or warranty by theAssignor.1. Assignor: ___________________________________2. Assignee: ______________________________ [and is an Affiliate [identify Lender](2)]3. Company(s): ____________________________4. Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement5. Credit Agreement: Credit Agreement, dated as of December 14, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among IDEX Corporation, a- ———–(1) Include all applicable subfacilities.(2) Select as applicable. F – 1 Form of Assignment and Assumption Delaware corporation (the “Company”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.6. Assigned Interest:

Aggregate Facility Amount of Amount of Percentage Assigned Commitment Commitment Assigned of for all Lenders* Assigned* Commitment(3) CUSIP Number – ———- $———- $———- ———-%- ———- $———- $———- ———-%

[7. Trade Date:________________](4)Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENTAND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTERTHEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreedto: ASSIGNOR [NAME OF ASSIGNOR] By:__________________________________ Title: ASSIGNEE [NAME OF ASSIGNEE] By:__________________________________ Title:- ————(3) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.(4) To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date F – 2 Form of Assignment and Assumption[Consented to and](5) Accepted:BANK OF AMERICA, N.A., as Administrative AgentBy:__________________________________ Title:[Consented to:](6)By:__________________________________ Title:- ————-(5) To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.(6) Tobe added only if the consent of the Company and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement. F – 3 Form of Assignment and Assumption ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1. Assignor. The Assignor (a) represents and warrants that (i) itis the legal and beneficial owner of the Assigned Interest, (ii) the AssignedInterest is free and clear of any lien, encumbrance or other adverse claim and(iii) it has full power and authority, and has taken all action necessary, toexecute and deliver this Assignment and Assumption and to consummate thetransactions contemplated hereby; and (b) assumes no responsibility with respectto (i) any statements, warranties or representations made in or in connectionwith the Credit Agreement or any other Loan Document, (ii) the execution,legality, validity, enforceability, genuineness, sufficiency or value of theLoan Documents or any collateral thereunder, (iii) the financial condition ofthe Company, any of its Subsidiaries or Affiliates or any other Person obligatedin respect of any Loan Document or (iv) the performance or observance by theCompany, any of its Subsidiaries or Affiliates or any other Person of any oftheir respective obligations under any Loan Document. 1.2. Assignee. The Assignee (a) represents and warrants that (i) ithas full power and authority, and has taken all action necessary, to execute anddeliver this Assignment and Assumption and to consummate the transactionscontemplated hereby and to become a Lender under the Credit Agreement, (ii) itmeets all requirements of an Eligible Assignee under the Credit Agreement(subject to receipt of such consents as may be required under the CreditAgreement), (iii) from and after the Effective Date, it shall be bound by theprovisions of the Credit Agreement as a Lender thereunder and, to the extent ofthe Assigned Interest, shall have the obligations of a Lender thereunder, (iv)it has received a copy of the Credit Agreement, together with copies of the mostrecent financial statements delivered pursuant to Section 6.01 thereof, asapplicable, and such other documents and information as it has deemedappropriate to make its own credit analysis and decision to enter into thisAssignment and Assumption and to purchase the Assigned Interest on the basis ofwhich it has made such analysis and decision independently and without relianceon the Administrative Agent or any other Lender, and (v) if it is a ForeignLender, attached hereto is any documentation required to be delivered by itpursuant to the terms of the Credit Agreement, duly completed and executed bythe Assignee; and (b) agrees that (i) it will, independently and withoutreliance on the Administrative Agent, the Assignor or any other Lender, andbased on such documents and information as it shall deem appropriate at thetime, continue to make its own credit decisions in taking or not taking actionunder the Loan Documents, and (ii) it will perform in accordance with theirterms all of the obligations which by the terms of the Loan Documents arerequired to be performed by it as a Lender. 2. Payments. From and after the Effective Date, the Administrative Agentshall make all payments in respect of the Assigned Interest (including paymentsof principal, interest, fees and other amounts) to the Assignor for amountswhich have accrued to but excluding the Effective Date and to the Assignee foramounts which have accrued from and after the Effective Date. 3. General Provisions. This Assignment and Assumption shall be bindingupon, and inure to the benefit of, the parties hereto and their respectivesuccessors and assigns. This Assignment and Assumption may be executed in anynumber of counterparts, which together shall constitute one F – 4 Form of Assignment and Assumptioninstrument. Delivery of an executed counterpart of a signature page of thisAssignment and Assumption by telecopy shall be effective as delivery of amanually executed counterpart of this Assignment and Assumption. This Assignmentand Assumption shall be governed by, and construed in accordance with, the lawof the State of Illinois. F – 5 Form of Assignment and Assumption