REVOLVING CREDIT AGREEMENT

 

<PAGE>

 

                                                                    EXHIBIT 99.1

================================================================================

 

                           REVOLVING CREDIT AGREEMENT

 

                           Dated as of March 31, 2005

 

                                      among

 

                               HARRIS CORPORATION,

 

                                as the Borrower,

 

                   THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

                                        and

 

                                 SUNTRUST BANK,

 

            as Administrative Agent, L/C Issuer and Swingline Lender,

 

                                       and

 

           CITICORP USA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION,

 

                            as Co-Syndication Agents

 

                                       and

 

          FLEET NATIONAL BANK and HSBC BANK USA, NATIONAL ASSOCIATION,

 

                           as Co-Documentation Agents

 

                                        and

 

    SUNTRUST ROBINSON HUMPHREY, A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,

 

                        as Lead Arranger and Book Manager

 

================================================================================

 

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                                 TABLE OF CONTENTS

 

<TABLE>

<CAPTION>

                                                                                                         PAGE

                                                                                                          ----

<S>                                                                                                       <C>

ARTICLE I.         DEFINITIONS AND ACCOUNTING TERMS.....................................................     1

      1.01   Defined Terms..............................................................................     1

      1.02   Other Interpretive Provisions..............................................................    18

      1.03   Accounting Terms...........................................................................    18

      1.04   Rounding...................................................................................    19

      1.05   References to Agreements and Laws..........................................................    19

 

ARTICLE II.        THE COMMITMENTS AND CREDIT EXTENSIONS................................................    19

      2.01   Committed Loans............................................................................    19

      2.02   Borrowings, Conversions and Continuations of Committed Loans...............................    19

      2.03   Competitive Bid Loans......................................................................    21

      2.04   Negotiated Bid Loans.......................................................................    24

      2.05   Letters of Credit..........................................................................    25

      2.06   Prepayments................................................................................    32

      2.07   Optional Reduction or Termination of Commitments...........................................    32

      2.08   Repayment of Loans.........................................................................    33

      2.09   Interest...................................................................................    33

      2.10   Fees.......................................................................................    34

      2.11   Computation of Interest and Fees...........................................................    34

      2.12   Evidence of Debt...........................................................................    35

      2.13   Payments Generally.........................................................................    35

      2.14   Sharing of Payments........................................................................    37

      2.15   Swingline Commitment.......................................................................    38

      2.16   Procedure for Swingline Borrowing; Etc.....................................................    38

      2.17   Increase in Commitments; Additional Lenders................................................    39

 

ARTICLE III.       TAXES, YIELD PROTECTION AND ILLEGALITY...............................................    41

      3.01   Taxes......................................................................................    41

      3.02   Illegality.................................................................................    43

      3.03   Inability to Determine Rates...............................................................    43

      3.04   Increased Cost and Reduced Return; Capital Adequacy Reserves on Eurodollar Rate Loans......    43

      3.05   Funding Losses.............................................................................    44

      3.06   Matters Applicable to all Requests for Compensation........................................    45

      3.07   Applicability to Negotiated Bid Loans......................................................    45

      3.08   Survival...................................................................................    45

      3.09   Change in Lending Office; Limitation on Increased Costs....................................    46

 

ARTICLE IV.        CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................    46

      4.01   Conditions of Initial Credit Extension.....................................................    46

      4.02   Conditions to all Credit Extensions........................................................    48

 

ARTICLE V.         REPRESENTATIONS AND WARRANTIES.......................................................    48

</TABLE>

 

                                      -i-

 

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<TABLE>

<S>                                                                                                        <C>

      5.01   Existence, Qualification...................................................................    48

      5.02   Authorization; No Contravention............................................................    48

      5.03   Governmental Authorization.................................................................    49

      5.04   Binding Effect.............................................................................    49

      5.05   Financial Statements; No Material Adverse Change...........................................    49

      5.06   Litigation.................................................................................    49

      5.07   ERISA Compliance...........................................................................    49

      5.08   Real Property..............................................................................    50

      5.09   Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............    50

      5.10   Outstanding Loans..........................................................................    51

      5.11   Taxes......................................................................................    51

      5.12   Intellectual Property; License, Etc........................................................    51

      5.13   Disclosure.................................................................................    51

      5.14   Solvency...................................................................................    51

      5.15   Patriot Act................................................................................    51

      5.16   OFAC.......................................................................................    52

 

ARTICLE VI.        AFFIRMATIVE COVENANTS................................................................    52

      6.01   Reporting Requirements.....................................................................    52

      6.02   Corporate Existence........................................................................    54

      6.03   Compliance with Laws, Etc..................................................................    54

      6.04   Certificates...............................................................................    54

      6.05   Covenant to Secure Notes Equally...........................................................    54

      6.06   Maintenance of Properties..................................................................    55

      6.07   Maintenance of Insurance...................................................................    55

      6.08   Taxes and Other Claims.....................................................................    55

      6.09   Environmental Laws.........................................................................    55

      6.10   Books and Records..........................................................................    56

      6.11   Compliance with ERISA......................................................................    56

      6.12   Visitation, Inspection, Etc................................................................    56

 

ARTICLE VII.       NEGATIVE COVENANTS...................................................................    56

      7.01   Liens......................................................................................    56

      7.02   Merger, Consolidation and Sale of Assets...................................................    59

      7.03   Sale and Leaseback.........................................................................    60

      7.04   Certain Investments........................................................................    60

      7.05   Use of Proceeds............................................................................    60

      7.06   Financial Covenants........................................................................    60

      7.07   Restrictive Agreements.....................................................................    60

      7.08   Hedging Transactions.......................................................................    61

 

ARTICLE VIII.      EVENTS OF DEFAULT AND REMEDIES.......................................................    61

      8.01   Events of Default..........................................................................    61

 

ARTICLE IX.        ADMINISTRATIVE AGENT.................................................................    64

      9.01   Appointment and Authorization of Administrative Agent......................................    64

</TABLE>

 

                                      -ii-

 

<PAGE>

 

<TABLE>

<S>                                                                                                       <C>

      9.02   Delegation of Duties.......................................................................    65

      9.03   Liability of Administrative Agent..........................................................    65

      9.04   Reliance by Administrative Agent...........................................................    65

      9.05   Notice of Default..........................................................................    66

      9.06   Credit Decision; Disclosure of Information by Administrative Agent.........................    66

      9.07   Indemnification of Administrative Agent....................................................    67

      9.08   Administrative Agent in its Individual Capacity............................................    67

       9.09   Successor Administrative Agent.............................................................    67

      9.10   Other Agents; Lead Managers................................................................    68

 

ARTICLE X.         MISCELLANEOUS........................................................................    68

      10.01 Amendments, Etc............................................................................    68

      10.02 Notices and Other Communications; Facsimile Copies; General................................    69

      10.03 No Waiver; Cumulative Remedies.............................................................    70

      10.04 Attorney Costs, Expenses and Taxes.........................................................    71

      10.05 Indemnification by the Borrower............................................................    71

      10.06 Payments Set Aside.........................................................................    72

      10.07 Successors and Assigns.....................................................................    72

      10.08 Confidentiality............................................................................    75

      10.09 Set-off....................................................................................    76

      10.10 Interest Rate Limitation...................................................................    77

      10.11 Counterparts...............................................................................    77

      10.12 Integration................................................................................    77

      10.13 Survival of Representations and Warranties.................................................    77

      10.14 Severability...............................................................................    77

      10.15 Removal and Replacement of Lenders.........................................................    78

      10.16 Governing Law..............................................................................    78

      10.17 Waiver of Right to Trial by Jury...........................................................    79

      10.18 Waiver of Right to Consequential Damages...................................................    79

      10.19 ENTIRE AGREEMENT...........................................................................    79

      10.20 Patriot Act Notice.........................................................................    80

</TABLE>

 

SCHEDULES

 

2.01   Commitments and Pro Rata Shares

2.05   Existing Letters of Credit

5.06   Litigation

5.12   Intellectual Property

10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices

 

EXHIBITS

 

      FORM OF

 

A      Committed Loan Notice

B-1    Competitive Bid Request

 

                                      -iii-

 

<PAGE>

 

B-2    Competitive Bid Offer

C-1    Committed Loan Note

C-2    Competitive Bid Loan Note

C-3    Negotiated Bid Loan Note

C-4    Swingline Note

D      Compliance Certificate

E      Assignment and Acceptance

F      Closing Date Opinion of Counsel (content summary)

G      Swingline Notice

 

                                      -iv-

 

<PAGE>

 

                           REVOLVING CREDIT AGREEMENT

 

      This REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered

into as of March 31, 2005, by and among HARRIS CORPORATION, a Delaware

corporation (the "Borrower"), each lender from time to time party hereto

(collectively, the "Lenders" and individually, a "Lender"), and SUNTRUST BANK,

in its capacity as administrative agent for the Lenders (the "Administrative

Agent"), as issuing bank for letters of credit (the "L/C Issuer") and as

swingline lender (the "Swingline Lender").

 

                                   WITNESSETH:

 

      WHEREAS, the Borrower has requested that the Lenders provide a

$500,000,000 revolving credit facility in favor of the Borrower;

 

      WHEREAS, subject to the terms and conditions of this Agreement, the

Lenders, the L/C Issuer and the Swingline Lender to the extent of their

respective Commitments as defined herein, are willing severally to establish the

requested revolving credit facility, letter of credit subfacility and the

swingline subfacility in favor of the Borrower.

 

      NOW THEREFORE, in consideration of the mutual covenants and agreements

herein contained and for other good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, the parties hereto covenant and

agree as follows:

 

                                   ARTICLE I.

                        DEFINITIONS AND ACCOUNTING TERMS

 

      1.01   DEFINED TERMS. As used in this Agreement, the following terms shall

have the meanings set forth below:

 

      "Absolute Rate" means a fixed rate of interest expressed in multiples of

1/100th of one basis point.

 

      "Absolute Rate Loan" means a Competitive Bid Loan that bears interest at a

rate determined with reference to an Absolute Rate.

 

      "Acquisition" means the acquisition of (a) a controlling equity interest

in another Person (including the purchase of an option, warrant or convertible

or similar type security to acquire such a controlling interest at the time it

becomes exercisable by the holder thereof), whether by purchase of such equity

interest or upon exercise of an option or warrant for, or conversion of

securities into, such equity interest, or (b) assets of another Person which

constitute all or substantially all of the assets of such Person or a line or

lines of business conducted by such Person.

 

      "Additional Commitment Amount" has the meaning set forth in Section

2.17(a).

 

      "Additional Lender" has the meaning set forth in Section 2.17(b).

 

<PAGE>

 

      "Administrative Agent" means SunTrust Bank in its capacity as

administrative agent under any of the Loan Documents, or any successor

administrative agent.

 

      "Administrative Agent's Office" means the Administrative Agent's address

and, as appropriate, account as set forth on Schedule 10.02, or such other

address or account as the Administrative Agent may from time to time notify to

the Borrower and the Lenders.

 

      "Affiliate" means, as to any Person, any other Person directly or

indirectly controlling, controlled by, or under direct or indirect common

control with, such Person. A Person shall be deemed to be "controlled by" any

other Person if such other Person possesses, directly or indirectly, power (a)

to vote 10% or more of the securities having ordinary voting power for the

election of directors or managing general partners; or (b) to direct or cause

the direction of the management and policies of such Person whether by contract

or otherwise.

 

      "Agent-Related Persons" means the Administrative Agent (including any

successor administrative agent), together with its Affiliates, and the officers,

directors, employees, agents and attorneys-in-fact of such Persons and

Affiliates.

 

      "Aggregate Commitments" shall mean, collectively, all Commitments of all

Lenders at any time outstanding.

 

      "Agreement" has the meaning set forth in the first paragraph hereof.

 

      "Applicable Rate" means, from time to time, the following percentages per

annum, based upon the Senior Debt Rating existing at such time:

 

<TABLE>

<CAPTION>

                                  Eurodollar Rate and

    Pricing        Senior Debt           Letters of       Facility

     Level           Ratings               Credit           Fee

--------------   ----------------   -------------------   --------

<S>              <C>                <C>                   <C>

       I         A-/A3 or better           .3000%          .1000%

      II             BBB+/Baa1              .4000%          .1000%

      III            BBB/Baa2              .5000%          .1250%

      IV            BBB-/Baa3              .6250%          .1250%

       V         BB+/Ba1 or lower          1.050%          .2000%

</TABLE>

 

      "Senior Debt Rating" means the senior debt rating assigned to the senior,

unsecured long-term debt securities of the Borrower by either S&P or Moody's

without third-party credit enhancement, whether or not any such debt securities

are actually outstanding, and any rating assigned to any other debt security of

the Borrower shall be disregarded. The rating in effect on any date is that in

effect at the close of business on such date. If the Borrower is split-rated and

(1) the ratings differential is one category, the higher of the two ratings will

apply, (2) the ratings differential is two categories, the rating which falls

between them shall apply or (3) the ratings differential is three categories or

more, the rating immediately above the lower of the two ratings shall apply. If

only one of S&P and Moody's shall have in effect a senior debt rating for the

Borrower, the Applicable Rate shall be determined by reference to the available

rating. If neither

 

                                      -2-

<PAGE>

 

Moody's nor S&P has rated the Borrower, then the Applicable Rate shall be

established by reference to Pricing Level V.

 

      Initially, the Applicable Rate shall be set at Pricing Level III.

Thereafter, each change in the Applicable Rate resulting from a publicly

announced change in the Senior Debt Rating shall be effective, in the case of an

upgrade, during the period commencing on the date of public announcement thereof

and ending on the date immediately preceding the effective date of the next such

change and, in the case of a downgrade, during the period commencing on the date

of the public announcement thereof and ending on the date immediately preceding

the effective date of the next such change.

 

      "Assignment and Acceptance" means an Assignment and Acceptance

substantially in the form of Exhibit E.

 

      "Attorney Costs" means and includes all fees and disbursements of any law

firm or other external counsel and all disbursements of internal counsel

 

      "Attributable Indebtedness" means, on any date, in respect of any

Synthetic Lease Obligation, the capitalized amount of any remaining lease

payments under the relevant lease that would appear on a balance sheet of such

Person prepared as of such date in accordance with GAAP if such lease were

accounted for as a capital lease.

 

      "Audited Financial Statements" means the audited consolidated balance

sheet of the Borrower and its Subsidiaries for the fiscal year ended July 2,

2004, and the related consolidated statements of income and cash flows for such

fiscal year.

 

      "Base Rate" means for any day a fluctuating rate per annum equal to the

higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest

in effect for such day as publicly announced from time to time by SunTrust Bank

as its prime lending rate. Such rate is a rate set by SunTrust Bank based upon

various factors, including SunTrust Bank's costs and desired return, general

economic conditions and other factors, and is used as a reference point for

pricing some loans, which may be priced at, above, or below such announced rate.

The SunTrust Bank prime lending rate is a reference rate and does not

necessarily represent the lowest or best rate actually charged to any customer.

SunTrust Bank may make commercial loans or other loans at rates of interest at,

above, or below the SunTrust Bank prime lending rate. Any change in such rate

announced by SunTrust Bank shall take effect at the opening of business on the

day specified in the public announcement of such change.

 

      "Base Rate Loan" means a Committed Loan that bears interest based on the

Base Rate.

 

      "Board" means the Board of Governors of the Federal Reserve System of the

United States of America.

 

      "Borrower" has the meaning set forth in the introductory paragraph hereto.

 

      "Borrowing" means a Committed Borrowing, a Competitive Bid Borrowing, a

Negotiated Bid Borrowing, or a Swingline Borrowing, as the context may require.

 

                                      -3-

<PAGE>

 

      "Business Day" means any day other than a Saturday, Sunday, or other day

on which commercial banks are authorized to close under the Laws of, or are in

fact closed in, the state where the Administrative Agent's Office is located

and, if such day relates to any Eurodollar Rate Loan, means any such day on

which dealings in Dollar deposits are conducted by and between banks in the

applicable offshore Dollar interbank market.

 

      "Cash Collateralize" means to pledge and deposit with or deliver to the

Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as

collateral for the L/C Obligations, cash or deposit account balances pursuant to

documentation in form and substance satisfactory to the Administrative Agent and

the L/C Issuer (which documents are hereby consented to by the Lenders).

Derivatives of such term shall have corresponding meaning. The Borrower hereby

grants the Administrative Agent, for the benefit of the L/C Issuer and the

Lenders, a Lien on all such cash and deposit account balances. Cash collateral

shall be maintained in blocked, non-interest bearing deposit accounts at

SunTrust Bank, or other institutions satisfactory to the Required Lenders.

 

      "Change of Control" means, with respect to any Person, an event or series

of events by which:

 

      (a)     any "person" or "group" (as such terms are used in Sections 13(d)

and 14(d) of the Securities Exchange Act of 1934, but excluding any employee

benefit plan of such person or its subsidiaries, or any person or entity acting

in its capacity as trustee, agent or other fiduciary or administrator of any

such plan), becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5

under the Securities Exchange Act of 1934, except that such a person or group

shall be deemed to have "beneficial ownership" of all securities that such

person or group has the right to acquire (such right, "option right"), whether

such right is exercisable immediately or only after the passage of time),

directly or indirectly, of 25% or more of the equity securities of such Person

entitled to vote for members of the board of directors or equivalent governing

body on a fully-diluted basis (and taking into account all such securities that

such person or group has the right to acquire pursuant to any option right); or

 

      (b)    during any period of 12 consecutive months, a majority of the

members of the board of directors or other equivalent governing body of such

Person cease to be composed of individuals (i) who were members of that board or

equivalent governing body on the first day of such period, (ii) whose election

or nomination to that board or equivalent governing body was approved by

individuals referred to in clause (i) above constituting at the time of such

election or nomination at least a majority of that board or equivalent governing

body or a duly authorized committee of such board or governing body or (iii)

whose election or nomination to that board or other equivalent governing body

was approved by individuals referred to in clauses (i) and (ii) above

constituting at the time of such election or nomination at least a majority of

that board or equivalent governing body. For purposes of determining a majority

of the members of the board of directors or other equivalent governing body,

vacant seats shall not be included.

 

       "Closing Date" means the first date all the conditions precedent in

Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the

case of Section 4.01(b), waived by the Person entitled to receive the applicable

payment).

 

                                       -4-

<PAGE>

 

      "Code" means the Internal Revenue Code of 1986.

 

      "Commitment" means, as to each Lender, its obligation (a) to make

Committed Loans to the Borrower pursuant to Section 2.01 and (b) to purchase

participations in L/C Obligations and Swingline Loans, in an aggregate principal

amount at any one time outstanding not to exceed the amount set forth opposite

such Lender's name on Schedule 2.01, as such amount may be reduced or adjusted

from time to time in accordance with this Agreement.

 

      "Committed Borrowing" means a borrowing consisting of simultaneous

Committed Loans of the same Type and having the same Interest Period made by

each of the Lenders pursuant to Section 2.01.

 

      "Committed Loan" has the meaning specified in Section 2.01.

 

      "Committed Loan Note" means a promissory note made by the Borrower in

favor of a Lender evidencing Committed Loans made by such Lender, substantially

in the form of Exhibit C-1.

 

      "Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a

conversion of Committed Loans from one Type to the other, or (c) a continuation

of Committed Loans as the same Type, pursuant to Section 2.02(a), which, if in

writing, shall be substantially in the form of Exhibit A.

 

      "Commonly Controlled Entity" means an entity, whether or not incorporated,

which is under common control with the Borrower within the meaning of Section

4001 of ERISA or is part of a group which includes the Borrower and which is

treated as a single employer under Section 414 of the Code.

 

      "Competitive Bid" means a written offer by a Lender to make one or more

Competitive Bid Loans, substantially in the form of Exhibit B-2, duly completed

and signed by a Lender.

 

      "Competitive Bid Borrowing" means a borrowing consisting of simultaneous

Competitive Bid Loans of the same Type from each of the Lenders whose offer to

make one or more Competitive Bid Loans as part of such borrowing has been

accepted under the auction bidding procedures described in Section 2.03.

 

      "Competitive Bid Loan" has the meaning specified in Section 2.03(a).

 

      "Competitive Bid Loan Note" means a promissory note made by the Borrower

in favor of a Lender evidencing Competitive Bid Loans made by such Lender,

substantially in the form of Exhibit C-2.

 

      "Competitive Bid Loan Sublimit" means an amount equal to the principal

amount of the Aggregate Commitments. The Competitive Bid Loan Sublimit is part

of, and not in addition to, the Aggregate Commitments.

 

       "Competitive Bid Request" means a written request for one or more

Competitive Bid Loans substantially in the form of Exhibit B-1.

 

                                      -5-

<PAGE>

 

      "Compliance Certificate" means a certificate substantially in the form of

Exhibit D.

 

      "Consolidated EBITDA" means, for any period, for the Borrower and its

Subsidiaries determined on a consolidated basis in accordance with GAAP, an

amount equal to the sum of (a) Consolidated Net Income for such period plus (b)

to the extent deducted in determining Consolidated Net Income for such period,

(i) Consolidated Interest Charges, (ii) income tax expense, (iii) depreciation

and amortization, determined on a consolidated basis in accordance with GAAP in

each case for such period, (iv) other non-cash losses or deductions (including

purchased in-process research and development, impairment charges, expensing of

stock options or stock awards, write-offs or restructuring charges), and (v)

fees, costs, write-offs and other expenses associated with any Acquisition.

 

      "Consolidated Interest Charges" means, for any period, for the Borrower

and its Subsidiaries determined on a consolidated basis in accordance with GAAP,

total interest expense with respect to Debt including, without limitation, the

interest component of any payments in respect of capital leases capitalized or

expensed during such period (whether or not actually paid during such period).

 

      "Consolidated Net Income" means, for any period, for the Borrower and its

Subsidiaries determined on a consolidated basis in accordance with GAAP, the net

income (or loss) of the Borrower and its Subsidiaries for such period determined

on a consolidated basis in accordance with GAAP, but excluding therefrom (to the

extent otherwise included therein) (i) any non-cash extraordinary gains or

losses, (ii) any gains attributable to write-ups of assets and (iii) any equity

interest of the Borrower or any Subsidiary of the Borrower in the unremitted

earnings of any Person that is not a Subsidiary.

 

      "Consolidated Net Interest Expense" means, for any period, for the

Borrower and its Subsidiaries determined on a consolidated basis in accordance

with GAAP, (i) Consolidated Interest Charges less (ii) interest income of the

Borrower and its Subsidiaries for such period.

 

      "Consolidated Total Assets" means, at any time, the total consolidated

assets of the Borrower and its Subsidiaries determined on a consolidated basis

in accordance with GAAP, as reflected on the Borrower's consolidated balance

sheet as of the last day of the fiscal quarter ending on or before the date of

determination, after eliminating all amounts properly attributable to minority

interests, if any, in the stock and surplus of Subsidiaries.

 

      "Consolidated Total Indebtedness" means, at any time, without duplication,

the sum of (a) all amounts which would be included as indebtedness of the

Borrower and its Subsidiaries determined on a consolidated basis in accordance

with GAAP at such time, plus (b) the amount of Attributable Indebtedness of the

Borrower and its Subsidiaries at such time.

 

      "Credit Extension" means (a) a Committed Borrowing, a Competitive Bid

Borrowing, a Negotiated Bid Borrowing or a Swingline Borrowing and (b) an L/C

Credit Extension.

 

      "Debt" means, as to any Person at any date, without duplication, (a) all

indebtedness of such Person for borrowed money or for the deferred purchase

price of property or services in respect of which such Person is liable,

contingently or otherwise, as obligor, guarantor or otherwise, or in respect of

which such Person otherwise assures a creditor against loss, (other

 

                                      -6-

<PAGE>

 

than current liabilities incurred in the ordinary course of business and payable

in accordance with customary practices) or which is evidenced by a note, bond,

debenture or similar instrument, (b) all obligations of such Person under any

lease of property, real or personal, the obligations of the lessee in respect of

which are required in accordance with GAAP to be capitalized on a balance sheet

of the lessee and (c) all Synthetic Lease Obligations.

 

      "Debtor Relief Laws" means the Bankruptcy Code of the United States of

America, and all other liquidation, conservatorship, bankruptcy, assignment for

the benefit of creditors, moratorium, rearrangement, receivership, insolvency,

reorganization, or similar debtor relief Laws of the United States of America or

other applicable jurisdictions from time to time in effect and affecting the

rights of creditors generally.

 

      "Default" means any event that, with the giving of any notice, the passage

of time, or both, would be an Event of Default.

 

      "Default Rate" means an interest rate equal to (a) with respect to Base

Rate Loans, the Base Rate plus 2% per annum; (b) with respect to Eurodollar Rate

Loans, the Eurodollar Rate plus the Applicable Rate applicable to Eurodollar

Rate Loans plus 2% per annum; provided, however, that for any Eurodollar Rate

Loans, at the end of the applicable Interest Period, interest shall accrue at

the Base Rate plus 2% per annum, and (c) with respect to Swingline Loans, the

Base Rate (or if greater such other rate as agreed to by the Borrower and the

Swingline Lender with respect to such Swingline Loans) plus 2% per annum, in

each case to the fullest extent permitted by applicable Laws.

 

      "Divestiture" has the meaning set forth in Section 7.02(b).

 

      "Dollar" and "$" means lawful money of the United States of America.

 

      "Eligible Assignee" has the meaning specified in Section 10.07(h).

 

      "Environmental Laws" means any and all Federal, state, local or municipal

laws, rules, orders, regulations, statutes, ordinances, codes, decrees or

requirements of any Governmental Authority regulating, relating to or imposing

liability or standards of conduct concerning environmental protection matters

(including, without limitation, any hazardous materials, hazardous wastes,

hazardous constituents, hazardous or toxic substances or petroleum products

(including crude oil or any fraction thereof)) as now or at any time hereafter

in effect.

 

      "ERISA" means the Employee Retirement Income Security Act of 1974 and any

regulations promulgated thereunder.

 

      "ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;

(b) a withdrawal by the Borrower or any Commonly Controlled Entity from a

Pension Plan subject to Section 4063 of ERISA during a plan year in which it was

a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a

cessation of operations that is treated as such a withdrawal under Section

4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any

Commonly Controlled Entity from a Multiemployer Plan or notification that a

Multiemployer Plan is in reorganization; (d) with respect to a Pension Plan or

Multiemployer Plan that does not hold assets that equal or exceed its

liabilities, the filing of a notice of intent to terminate under

 

                                      -7-

<PAGE>

 

Section 4041(a)(2) of ERISA if the Pension Plan's liabilities exceed its assets

as of the date of the filing of such notice, the treatment of a Plan amendment

as a termination under Sections 4041 or 4041A of ERISA, or the commencement of

proceedings by the PBGC to terminate such Pension Plan or Multiemployer Plan;

(e) an event or condition which might reasonably be expected to constitute

grounds under Section 4042(a)(1)-(3) of ERISA for the termination of, or the

appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;

or (f) the imposition of any liability under Title IV of ERISA, other than PBGC

premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower

or any Commonly Controlled Entity that would cause a Material Adverse Effect.

 

      "Eurodollar Bid Margin" means the margin above or below the Eurodollar

Rate to be added to or subtracted from the Eurodollar Rate, which margin shall

be expressed in multiples of 1/100th of one basis point.

 

      "Eurodollar Margin Competitive Bid Loan" means a Competitive Bid Loan that

bears interest at a rate based upon the Eurodollar Rate.

 

      "Eurodollar Rate" means, with respect to each Interest Period for a

Eurodollar Rate Loan, LIBOR for such Interest Period.

 

      "Eurodollar Rate Committed Loan" means a Committed Loan that bears

interest at a rate based on the Eurodollar Rate.

 

      "Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a

Eurodollar Margin Competitive Bid Loan.

 

      "Event of Default" has the meaning specified in Article VIII.

 

      "Excluded Taxes" means in the case of the Administrative Agent or any

Lender (i) taxes imposed on or measured by its net income, and franchise taxes

imposed on it (in lieu of net income taxes), by the jurisdiction (or any

political subdivision thereof) under the Laws of which the Administrative Agent

or such Lender, as the case may be, is organized or maintains a lending office,

(ii) taxes imposed as a result of a present or former connection between the

jurisdiction of the government or taxing authority imposing such tax (or any

political subdivision or taxing authority thereof or therein) and the

Administrative Agent or such Lender (excluding a connection arising principally

as a result of the Administrative Agent or such Lender having executed,

delivered or performed its obligations or received a payment under, or enforced,

any Loan Document), and (iii) in the case of a Foreign Lender, any withholding

tax that (A) is imposed on amounts payable to such Foreign Lender at the time

such Foreign Lender becomes a party to this Agreement, (B) is imposed on amounts

payable to such Foreign Lender at any time that such Foreign Lender designates a

new lending office, other than taxes that have accrued prior to the designation

of such lending office that are otherwise not Excluded Taxes, and (C) is

attributable to such Foreign Lender's failure to comply with Section 3.01(e).

 

      "Existing Credit Facility" means that certain Revolving Credit Agreement,

dated as of October 15, 2003, among the Borrower, the lenders party thereto, and

SunTrust Bank as administrative agent, L/C issuer and swingline lender and the

other parties thereto.

 

                                      -8-

<PAGE>

 

      "Existing Letters of Credit" means the letters of credit issued and

outstanding under the Existing Credit Facility as set forth on Schedule 2.05.

 

      "Federal Funds Rate" shall mean, for any day, the rate per annum (rounded

upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average

of the rates on overnight Federal funds transactions with member banks of the

Federal Reserve System arranged by Federal funds brokers, as published by the

Federal Reserve Bank of New York on the next succeeding Business Day or if such

rate is not so published for any Business Day, the Federal Funds Rate for such

day shall be the average rounded upwards, if necessary, to the next 1/100th of

1% of the quotations for such day on such transactions received by the

Administrative Agent from three Federal funds brokers of recognized standing

selected by the Administrative Agent.

 

      "Fee Letter" means that certain fee letter, dated as of February 15, 2005,

executed by SunTrust Robinson Humphrey, a division of SunTrust Capital Markets,

Inc. and SunTrust Bank, and accepted by the Borrower.

 

      "Foreign Lender" means each Lender that is a "foreign corporation,

partnership or trust" within the meaning of the Code.

 

      "GAAP" means generally accepted accounting principles set forth in the

opinions and pronouncements of the Accounting Principles Board and the American

Institute of Certified Public Accountants and statements and pronouncements of

the Financial Accounting Standards Board or such other principles as may be

approved by a significant segment of the accounting profession, that are

applicable to the circumstances as of the date of determination, consistently

applied.

 

      "Government Contract" means any contract with or made at the request of

any Governmental Authority.

 

      "Governmental Authority" means any nation or government, any state or

other political subdivision thereof, any agency, authority, department,

instrumentality, commission, regulatory body, court, administrative tribunal,

central bank or other entity exercising executive, legislative, judicial,

taxing, regulatory or administrative powers or functions of or pertaining to

government.

 

      "Hazardous Materials" means any hazardous materials, hazardous wastes,

hazardous constituents, hazardous or toxic substances or petroleum products

(including crude oil or any fraction thereof), defined or regulated as such in

or under any Environmental Law.

 

      "Hedging Arrangements" means (a) any and all rate swap transactions, basis

swaps, credit derivative transactions, forward rate transactions, commodity

swaps, commodity options, forward commodity contracts, equity or equity index

swaps or options, bond or bond price or bond index swaps or options or forward

bond or forward bond price or forward bond index transactions, interest rate

options, forward foreign exchange transactions, cap transactions, floor

transactions, collar transactions, currency swap transactions, cross-currency

rate swap transactions, currency options, spot contracts, or any other similar

transactions or any combination of any of the foregoing (including any options

to enter into any of the foregoing), whether or not any such transaction is

governed by or subject to any master agreement, and (b) any and all transactions

of any kind, and the related confirmations, which are subject to the terms

 

                                      -9-

<PAGE>

 

and conditions of, or governed by, any form of master agreement published by the

International Swaps and Derivatives Association, Inc., any International Foreign

Exchange Master Agreement, or any other master agreement (any such master

agreement, together with any related schedules, a "Master Agreement"), including

any such obligations or liabilities under any Master Agreement.

 

      "Hostile Acquisition" means (a) any transaction which is subject to

Section 13 (other than an Investment Transaction) or Section 14 of the

Securities Exchange Act of 1934, unless, prior to the time such transaction

becomes subject to such Section 13 or 14, the board of directors or other

governing body of the acquiree has adopted a resolution approving such

transaction and approving any "change of control" with respect to such Person

whereby the Borrower may acquire control of such Person, and (b) any purchase or

attempt to purchase, any Person by means of a public debt or equity tender offer

or other unsolicited takeover (or the equivalent thereof in any jurisdiction),

or any attempt to engage in a proxy contest (or the equivalent thereof in any

jurisdiction) for control of the board of directors (or the functional

equivalent thereof) of any Person, in either case which has not been approved

and recommended by the board of directors (or the functional equivalent thereof)

of the Person being acquired or proposed to be acquired or which is the subject

of such proxy contest. For purposes of this definition, (x) a "change of

control" means, for any Person, an Acquisition with respect to such Person and

(y) an "Investment Transaction" means a transaction subject to Section 13(d),

but not Section 16, of the Securities Exchange Act of 1934, provided that in

connection with such a transaction Borrower or any applicable Subsidiary (as the

case may be) has reported and at all times continues to report to the Securities

and Exchange Commission that such transaction is undertaken for investment

purposes only and not for any of the purposes specified in clauses 4(a) through

(j), inclusive, of the special instructions for complying with Schedule 13D

under the Securities Exchange Act of 1934.

 

      "Indemnified Liabilities" has the meaning set forth in Section 10.05.

 

      "Indemnitees" has the meaning set forth in Section 10.05.

 

      "Insolvency" means, with respect to any Multiemployer Plan, the condition

that such plan is insolvent within the meaning of Section 4245 of ERISA.

 

      "Interest Payment Date" means, (a) as to any Loan other than a Base Rate

Loan or a Negotiated Bid Loan, the last day of each Interest Period applicable

to such Loan; provided, however, that if any Interest Period for a Eurodollar

Rate Loan exceeds three months, the respective dates that fall every three

months after the beginning of such Interest Period shall also be Interest

Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each

March, June, September and December and the Maturity Date; and (c) as to any

Negotiated Bid Loan, the date(s) agreed upon by the Borrower and the applicable

Lender with respect thereto.

 

      "Interest Period" means (a) as to each Eurodollar Rate Loan, the period

commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of

any Eurodollar Rate Committed Loan) converted to or continued as a Eurodollar

Rate Loan and ending on the date one, two, three or six months thereafter, as

selected by the Borrower in its Committed Loan Notice or Competitive Bid

Request, as the case may be, or, in the case of Eurodollar Rate

 

                                      -10-

<PAGE>

 

Committed Loans, such other period that is twelve months or less requested by

the Borrower and consented to by all the Lenders; (b) as to each Absolute Rate

Loan, a period of not less than 14 days and not more than 180 days as selected

by the Borrower in its Competitive Bid Request; and (c) as to any Swingline

Loan, such period as the Swingline Lender and the Borrower shall mutually agree,

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, in the case of a Eurodollar Rate Loan, 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 pertaining to a Eurodollar Rate Loan 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 scheduled Maturity

      Date.

 

      "IP Rights" has the meaning set forth in Section 5.12.

 

      "IRS" means the United States Internal Revenue Service.

 

      "Laws" means, collectively, all international, foreign, Federal, state and

local statutes, treaties, rules, guidelines, regulations, ordinances, codes,

executive orders and administrative or judicial precedents or authorities,

including the interpretation or administration thereof by any Governmental

Authority charged with the enforcement, interpretation or administration

thereof, and all applicable administrative orders, directed duties, requests,

licenses, authorizations and permits of, and agreements with, any Governmental

Authority, in each case whether or not having the force of law.

 

      "L/C Advance" means, with respect to each Lender, such Lender's

participation in any L/C Borrowing in accordance with its Pro Rata Share.

 

      "L/C Borrowing" means an extension of credit resulting from a drawing

under any Letter of Credit which has not been reimbursed on the date when made

or refinanced as a Committed Borrowing.

 

      "L/C Credit Extension" means, with respect to any Letter of Credit, the

issuance thereof or extension of the expiry date thereof, or the renewal or

increase of the amount thereof.

 

      "L/C Issuer" means SunTrust Bank in its capacity as issuer of Letters of

Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

      "L/C Obligations" means, as at any date of determination, the aggregate

undrawn face amount of all outstanding Letters of Credit plus the aggregate of

all Unreimbursed Amounts, including all L/C Borrowings.

 

                                      -11-

<PAGE>

 

      "Lender" has the meaning specified in the introductory paragraph hereto

and, as the context requires, includes the L/C Issuer and the Swingline Lender.

 

      "Lending Office" means, as to any Lender, the office or offices of such

Lender described as such on Schedule 10.02, or such other office or offices as a

Lender may from time to time notify the Borrower and the Administrative Agent.

 

      "Letter of Credit" means any letter of credit issued hereunder and any of

the Existing Letters of Credit. A Letter of Credit may be a commercial letter of

credit or a standby letter of credit.

 

      "Letter of Credit Application" means an application and agreement for the

issuance or amendment of a letter of credit hereunder in the form from time to

time in use by the L/C Issuer.

 

      "Letter of Credit Subfacility Expiration Date" means the day that is seven

days prior to the Maturity Date (or, if such day is not a Business Day, the next

preceding Business Day).

 

      "Letter of Credit Sublimit" means an amount equal to $75,000,000. The

Letter of Credit Sublimit is part of, and not in addition to, the Aggregate

Commitments.

 

      "LIBOR" means, for any applicable Interest Period with respect to any

Eurodollar Rate Loan, the British Bankers' Association Interest Settlement Rate

per annum for deposits in Dollars for a period equal to such Interest Period

appearing on the Bloomberg Page (or such other page or such other service

designated by the British Bankers' Association for the display of such

Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.

(London, England time) on the day that is two Business Days prior to the first

day of the Interest Period or if such page or service is unavailable for any

reason at such time, the rate which appears on the Reuters Screen ISDA Page as

of such date and such time; provided, that if the Administrative Agent

determines that the relevant foregoing sources are unavailable for the relevant

Interest Period, LIBOR shall mean the rate of interest determined by the

Administrative Agent to be the average (rounded upward, if necessary, to the

nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are

offered to the Administrative Agent (or the applicable Competitive Bid Loan

Lender, as the case may be) two (2) Business Days preceding the first day of

such Interest Period by leading banks in the London interbank market as of 10:00

a.m. (London, England time) for delivery on the first day of such Interest

Period, for the number of days comprised therein and in an amount comparable to

the amount of the Eurodollar Rate Loan of the Administrative Agent.

 

      "Lien" means any mortgage, pledge, security interest, assignment, deposit

arrangement, encumbrance, lien (statutory or otherwise), preference, priority or

charge of any kind or nature whatsoever (including, without limitation, any

agreement to give any of the foregoing, any conditional sale or other title

retention agreement, the filing of or agreement to give any financing statement

under the Uniform Commercial Code of any jurisdiction or any other similar

recording or notice statute, and any lease having substantially the same effect

as any of the foregoing).

 

                                      -12-

<PAGE>

 

      "Loan" means an extension of credit by a Lender to the Borrower under

Article II in the form of a Committed Loan, a Competitive Bid Loan, a Negotiated

Bid Loan or a Swingline Loan.

 

      "Loan Documents" means this Agreement, each Note, the Fee Letter, each

Request for Credit Extension and each Compliance Certificate, and any and all

other instruments, documents and agreements executed by the Borrower in

connection with any of the foregoing.

 

      "Margin Stock" has the meaning set forth in Regulation U issued by the

Board.

 

      "Material Adverse Effect" means a material adverse effect on (a) the

business, assets, operations, property, condition (financial or otherwise), or

results of operations of the Borrower and its Subsidiaries taken as a whole, (b)

the ability of the Borrower to perform its obligations under any Loan Document

or (c) the validity or enforceability of any Loan Document or the rights or

remedies of the Lenders hereunder or thereunder.

 

      "Material Subsidiary" means, at any time, any Subsidiary of the Borrower,

the assets of which represent 10% or more of Consolidated Total Assets (or the

equivalent thereof in another currency), based upon the most recent financial

statements delivered to the Administrative Agent pursuant to Sections 6.01(a)

and (b).

 

      "Maturity Date" means (a) March 31, 2010, or (b) such earlier date upon

which the Commitments are terminated in accordance with the terms hereof.

 

      "Moody's" means Moody's Investors Service, Inc. and any successor thereto.

 

      "Multiemployer Plan" means a multiemployer plan of the type described in

Section 4001(a)(3) of ERISA, to which the Borrower or any Commonly Controlled

Entity makes or is obligated to make contributions, or during the preceding

three calendar years, has made or been obligated to make contributions.

 

      "Negotiated Bid Borrowing" means a borrowing consisting of a Negotiated

Bid Loan from a Lender whose offer to make such a Negotiated Bid Loan has been

accepted in accordance with the procedures described in Section 2.04.

 

      "Negotiated Bid Loan" has the meaning set forth in Section 2.04(a).

 

      "Negotiated Bid Loan Note" means a promissory note made by the Borrower in

favor of a Lender evidencing Negotiated Bid Loans made by such Lender,

substantially in the form of Exhibit C-3.

 

      "Negotiated Bid Loan Sublimit" means an amount equal to the principal

amount of the Aggregate Commitments. The Negotiated Bid Loan Sublimit is part

of, and not in addition to, the Aggregate Commitments.

 

      "Notes" means, collectively, the Committed Loan Notes, the Competitive Bid

Loan Notes, the Negotiated Bid Loan Notes and the Swingline Note.

 

                                      -13-

<PAGE>

 

      "OFAC" means the U.S. Department of the Treasury's Office of Foreign

Assets Control.

 

      "Obligations" means all advances to, and debts, liabilities, obligations,

covenants and duties of, the Borrower arising under any Loan Document, whether

direct or indirect (including those acquired by assumption), absolute or

contingent, due or to become due, now existing or hereafter arising and

including interest that accrues after the commencement by or against the

Borrower or any of its Subsidiaries of any proceeding under any Debtor Relief

Laws naming such Person as the debtor in such proceeding.

 

      "Organization Documents" means, (a) with respect to any corporation, the

certificate or articles of incorporation and the bylaws; (b) with respect to any

limited liability company, the articles of formation and operating agreement;

and (c) with respect to any partnership, joint venture, trust or other form of

business entity, the partnership, joint venture or other applicable agreement of

formation and any agreement, instrument, filing or notice with respect thereto

filed in connection with its formation with the secretary of state or other

department in the state of its formation, in each case as amended from time to

time.

 

      "Outstanding Amount" means (i) with respect to Committed Loans,

Competitive Bid Loans, Negotiated Bid Loans and Swingline Loans on any date, the

aggregate outstanding principal amount thereof after giving effect to any

borrowings and prepayments or repayments of Committed Loans, Competitive Bid

Loans, Negotiated Bid Loans and Swingline Loans, as the case may be, occurring

on such date; and (ii) with respect to any L/C Obligations on any date, the

amount of such L/C Obligations on such date after giving effect to any L/C

Credit Extension occurring on such date and any other changes in the aggregate

amount of the L/C Obligations as of such date, including as a result of any

reimbursements of outstanding unpaid drawings under any Letters of Credit or any

reductions in the maximum amount available for drawing under Letters of Credit

taking effect on such date.

 

      "Participant" has the meaning specified in Section 10.07(d).

 

      "PBGC" means the Pension Benefit Guaranty Corporation established pursuant

to Subtitle A of Title IV of ERISA.

 

      "Pension Plan" means any "employee pension benefit plan" (as such term is

defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is

subject to Title IV of ERISA and is sponsored or maintained by the Borrower or

any Commonly Controlled Entity or to which the Borrower or any Commonly

Controlled Entity contributes or 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 time during the immediately preceding five plan years.

 

      "Permitted Liens" means only those Liens permitted by subsections (a)

through (q) of Section 7.01.

 

      "Person" means any individual, trustee, corporation, general partnership,

limited partnership, limited liability company, joint stock company, trust,

unincorporated organization, bank, business association, firm, joint venture or

other legally recognized entity or Governmental Authority.

 

                                      -14-

<PAGE>

 

      "Plan" means, at a particular time, an employee benefit plan as defined in

Section 3(3) of ERISA and in respect of which the Borrower or a Commonly

Controlled Entity is an "employer" as defined in Section 3(5) of ERISA, or would

be deemed a "contributing sponsor" under Section 4069 of ERISA if such plan were

terminated.

 

      "Properties" has the meaning set forth in Section 5.08.

 

      "Pro Rata Share" means, with respect to each Lender, the percentage

(carried out to the ninth decimal place) of the Aggregate Commitments set forth

opposite the name of such Lender on Schedule 2.01, as such share may be adjusted

as contemplated herein.

 

      "Register" has the meaning set forth in Section 10.07(c).

 

      "Reorganization" means, with respect to any Multiemployer Plan, the

condition that such plan is in reorganization within the meaning of Section 4241

of ERISA.

 

      "Reportable Event" means any of the events set forth in Section 4043(c) of

ERISA, other than those events as to which the thirty day notice period is

waived under the regulations promulgated under Section 4043 of ERISA.

 

      "Request for Credit Extension" means (a) with respect to a Borrowing,

conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with

respect to a Swingline Loan, a Swingline Notice, (c) with respect to a

Competitive Bid Loan, a Competitive Bid Request, and (d) with respect to an L/C

Credit Extension, a Letter of Credit Application.

 

      "Required Lenders" means, as of any date of determination, at least two

Lenders whose Voting Percentages aggregate more than 50%.

 

      "Responsible Officer" means the chief executive officer, president, vice

president, chief financial officer, treasurer or assistant treasurer of the

Borrower. Any document delivered hereunder that is signed by a Responsible

Officer of the Borrower shall be conclusively presumed to have been authorized

by all necessary corporate, partnership and/or other action on the part of the

Borrower and such Responsible Officer shall be conclusively presumed to have

acted on behalf of the Borrower.

 

      "S&P" means Standard & Poor's Ratings Services, a division of The

McGraw-Hill Companies, Inc., and any successor thereto.

 

      "Securitization" means any agreement or arrangement providing for sales,

transfers or conveyances to a special purpose Subsidiary or special purpose

entity of accounts receivable, notes, chattel paper, other rights to payment and

related property, whether or not for recourse and whether or not treated as a

sale for purposes of FAS 140, but not including the sale or transfer of a single

note or notes or receivable undertaken on an isolated, non-programmatic basis.

For purposes hereof, the "applicable amount" of any Securitization at any time

shall be equal to the greater of (a) the outstanding principal amount of any

Debt at such time incurred by the Borrower or any Subsidiary pursuant to any

such Securitization, or (b) the face amount or book value (whichever is greater)

of any and all receivables, notes, chattel paper, other rights to

 

                                      -15-

<PAGE>

 

payment and related property sold or transferred pursuant to such Securitization

and outstanding at such time.

 

      "Senior Debt Rating" has the meaning set forth in the definition of

"Applicable Rate."

 

      "Single Employer Plan" means any plan maintained for employees of the

Borrower or any Commonly Controlled Entity that is subject to Title IV of ERISA,

but which is not a Multiemployer Plan.

 

      "Solvent" and "Solvency" means, with respect to any Person on a particular

date, that on such date (a) the fair saleable value of the assets of such Person

is greater than the total amount of liabilities, including, without limitation,

contingent liabilities, of such Person, (b) such Person is able to meet its

obligations as those obligations mature, and (c) such Person is not engaged in

business or a transaction for which such Person's assets would constitute an

unreasonably small capital. The amount of contingent liabilities at any time

shall be computed as the amount that, in the light of all the facts and

circumstances existing at such time, represents the amount that can reasonably

be expected to become an actual or matured liability.

 

      "Subsidiary" of a Person means a corporation, partnership, joint venture,

limited liability company or other business entity of which a majority of the

shares of securities or other interests having ordinary voting power for the

election of directors or other governing body (other than securities or

interests having such power only by reason of the happening of a contingency)

are at the time beneficially owned, or the management of which is otherwise

controlled, directly, or indirectly through one or more intermediaries, or both,

by such Person. Unless otherwise specified, all references herein to a

"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of

the Borrower.

 

      "SunTrust Bank" means SunTrust Bank.

 

      "Swingline Borrowing" means a borrowing consisting of a Swingline Loan

from the Swingline Lender made pursuant to Section 2.15.

 

      "Swingline Commitment" means the commitment of the Swingline Lender to

make Swingline Loans in an aggregate principal amount at any time outstanding

not to exceed $20,000,000. The Swingline Commitment is part of, and not in

addition to, the Aggregate Commitments.

 

      "Swingline Exposure" means, with respect to each Lender, the principal

amount of the Swingline Loans in which such Lender is legally obligated either

to make a Base Rate Loan or to purchase a participation in accordance with

Section 2.16, which shall equal such Lender's Pro Rata Share of all outstanding

Swingline Loans.

 

      "Swingline Lender" means SunTrust Bank, or any other Lender that may agree

to make Swingline Loans hereunder.

 

      "Swingline Loan" means a loan made to the Borrower by the Swingline Lender

under the Swingline Commitment.

 

                                       -16-

<PAGE>

 

      "Swingline Note" means the promissory note of the Borrower payable to the

order of the Swingline Lender in the principal amount of the Swingline

Commitment, substantially the form of Exhibit C-4.

 

      "Swingline Notice" means a notice of Swingline Loan, delivered pursuant to

Section 2.16, which, if in writing, shall be substantially in the form of

Exhibit G.

 

      "Swingline Termination Date" means the day that is seven days prior to the

Maturity Date (or, if such day is not a Business Day, the next preceding

Business Day).

 

      "Synthetic Lease Obligation" means the monetary obligation of a Person

under a so-called synthetic, off-balance sheet or tax retention lease that does

not appear on the balance sheet of such Person but which, upon the insolvency or

bankruptcy of such Person, would be characterized as the indebtedness of such

Person (without regard to accounting treatment).

 

      "Threshold Amount" means $50,000,000.

 

      "Total Capital" means, at any date, the sum of (a) Consolidated Total

Indebtedness as of such date, plus (b) Total Shareholders' Equity as of the last

day of the most recently ended fiscal quarter for which the Borrower has or is

required hereunder to have delivered its financial statements.

 

      "Total Shareholders' Equity" means, as of any date, the total

shareholders' equity of the Borrower and its Subsidiaries that would be

reflected on the Borrower's consolidated balance sheet as of such date prepared

in accordance with GAAP, but without reduction for the minority interest in

Subsidiaries that are not wholly owned by the Borrower.

 

      "Type" means (a) with respect to a Committed Loan, its character as a Base

Rate Loan or a Eurodollar Rate Committed Loan, and (b) with respect to a

Competitive Bid Loan, its character as an Absolute Rate Loan or a Eurodollar

Margin Competitive Bid Loan.

 

      "Unreimbursed Amount" has the meaning set forth in Section 2.05(c)(i).

 

      "Vendor Finance Investment" means any loan, advance, lease (whether

structured as a capital lease or an operating lease) or guaranty entered into by

the Borrower pursuant to, in connection with or for the purpose of facilitating

the sale or provision of goods and services of the Borrower to its customers, in

each case arising outside of the Borrower's ordinary course of business as

existing on the date hereof.

 

      "Voting Percentage" means, as to any Lender, (a) at any time prior to the

Maturity Date, such Lender's Pro Rata Share and (b) at any time after the

Maturity Date, the percentage (carried out to the ninth decimal place) which (i)

the sum of (A) the Outstanding Amount of such Lender's Committed Loans,

Competitive Bid Loans and Negotiated Bid Loans, plus (B) such Lender's Pro Rata

Share of the Outstanding Amount of L/C Obligations and Swingline Exposure, then

comprises of (ii) the Outstanding Amount of all Loans and L/C Obligations;

provided, however, that if any Lender has failed to fund any portion of the

Committed Loans, participations in L/C Obligations or Swingline Exposure

required to be funded by it hereunder, such Lender's Voting Percentage shall be

deemed to be -0-, and the respective Pro Rata Shares

 

                                      -17-

<PAGE>

 

and Voting Percentages of the other Lenders shall be recomputed for purposes of

this definition and the definition of "Required Lenders" without regard to such

Lender's Commitment or the outstanding amount of its Committed Loans, Swingline

Loans and L/C Advances, as the case may be.

 

      1.02   OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and

any other Loan Document, unless otherwise specified herein or in such other Loan

Document:

 

      (a)    The meanings of defined terms are equally applicable to the singular

and plural forms of the defined terms.

 

       (b)    (i) The words "herein" and "hereunder" and words of similar import

when used in any Loan Document shall refer to such Loan Document as a whole and

not to any particular provision thereof.

 

            (i)    Article, Section, Exhibit and Schedule references are to the

      Loan Document in which such references appear.

 

            (ii)   The term "including" is by way of example and not limitation.

 

            (iii) The term "documents" includes any and all instruments,

      documents, agreements, certificates, notices, reports, financial

      statements and other writings, however evidenced, whether in electronic or

      physical form.

 

      (c)    In the computation of periods of time from a specified date to a

later specified date, the word "from" means "from and including;" the words "to"

and "until" each mean "to but excluding;" and the word "through" means "to and

including."

 

      (d)    Section headings herein and in the other Loan Documents are included

for convenience of reference only and shall not affect the interpretation of

this Agreement or any other Loan Document.

 

      1.03   ACCOUNTING TERMS.

 

      (a)    All accounting terms not specifically or completely defined herein

shall be construed in conformity with, and all financial data required to be

submitted pursuant to this Agreement shall be prepared in conformity with, GAAP

applied on a consistent basis, as in effect from time to time, applied in a

manner consistent with that used in preparing the Audited Financial Statements,

except as otherwise specifically prescribed herein.

 

      (b)    If at any time any change in GAAP would affect the computation of

any financial ratio or requirement set forth in any Loan Document, and either

the Borrower or the Required Lenders shall so request, the Administrative Agent,

the Lenders and the Borrower shall negotiate in good faith to amend such ratio

or requirement to preserve the original intent thereof in light of such change

in GAAP (subject to the approval of the Required Lenders); provided that, until

so amended, (i) such ratio or requirement shall continue to be computed in

accordance with GAAP prior to such change therein and (ii) the Borrower shall

provide to the Administrative Agent and the Lenders financial statements and

other documents required under this Agreement or as

 

                                      -18-

<PAGE>

 

reasonably requested hereunder setting forth a reconciliation between

calculations of such ratio or requirement made before and after giving effect to

such change in GAAP.

 

      1.04   ROUNDING. Any financial ratios required to be maintained by the

Borrower pursuant to this Agreement shall be calculated by dividing the

appropriate component by the other component, carrying the result to one place

more than the number of places by which such ratio is expressed herein and

rounding the result up or down to the nearest number (with a rounding-up if

there is no nearest number).

 

      1.05   REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly

provided herein, (a) references to agreements (including the Loan Documents) and

other contractual instruments shall be deemed to include all subsequent

amendments, restatements, extensions, supplements and other modifications

thereto, but only to the extent that such amendments, restatements, extensions,

supplements and other modifications are not prohibited by any Loan Document; and

(b) references to any Law shall include all statutory and regulatory provisions

consolidating, amending, replacing, supplementing or interpreting such Law.

 

                                   ARTICLE II.

                      THE COMMITMENTS AND CREDIT EXTENSIONS

 

      2.01   COMMITTED LOANS. Subject to the terms and conditions set forth

herein, each Lender severally agrees to make loans (each such loan, a "Committed

Loan") to the Borrower from time to time on any Business Day during the period

from the Closing Date to the Maturity Date, in an aggregate amount not to exceed

at any time outstanding the amount of such Lender's Commitment; provided,

however, that after giving effect to any Committed Borrowing, (i) the aggregate

Outstanding Amount of all Loans and L/C Obligations shall not exceed the

Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the

Committed Loans of any Lender, plus such Lender's Pro Rata Share of the

Outstanding Amount of all L/C Obligations and Swingline Exposure shall not

exceed such Lender's Commitment. Within the limits of each Lender's Commitment,

and subject to the other terms and conditions hereof, the Borrower may borrow

under this Section 2.01, prepay under Section 2.06, and reborrow under this

Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans,

as further provided herein.

 

      2.02   BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.

 

      (a)    Each Committed Borrowing, each conversion of Committed Loans from

one Type to the other, and each continuation of Committed Loans as the same Type

shall be made upon the Borrower's irrevocable notice to the Administrative

Agent, which may be given by telephone. Each such notice must be received by the

Administrative Agent not later than (x) 11:00 a.m., New York time, three

Business Days prior to the requested date of any Committed Borrowing of,

conversion to or continuation of Eurodollar Rate Committed Loans or of any

conversion of Eurodollar Rate Committed Loans to Base Rate Loans, and (y) 11:00

a.m., New York time, on the requested date of any Committed Borrowing of Base

Rate Loans. Each such telephonic notice must be confirmed promptly by delivery

to the Administrative Agent of a written Committed Loan Notice, appropriately

completed and signed by a Responsible Officer of the Borrower. Each Committed

Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans

shall be in a principal amount of $5,000,000 or a whole multiple of

 

                                      -19-

<PAGE>

 

$1,000,000 in excess thereof (or, if less, an aggregate principal amount equal

to the remaining balance of the available Commitments). Each Committed Borrowing

of or conversion to Base Rate Loans shall be in a principal amount of $500,000

or a whole multiple of $100,000 in excess thereof (or, if less, an aggregate

amount equal to the remaining balance of the available Commitments). Each

Committed Loan Notice (whether telephonic or written) shall specify (i) whether

the Borrower is requesting a Committed Borrowing, a conversion of Committed

Loans from one Type to the other, or a continuation of Committed Loans as the

same Type, (ii) the requested date of the Borrowing, conversion or continuation,

as the case may be (which shall be a Business Day), (iii) the principal amount

of Committed Loans to be borrowed, converted or continued, (iv) the Type of

Committed Loans to be borrowed or to which existing Committed Loans are to be

converted, (v) if applicable, the duration of the Interest Period with respect

thereto and (vi) if applicable, the Committed Loan from which the requested

Committed Loan will be converted or continued. If the Borrower fails to specify

a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to

give a timely notice requesting a conversion or continuation, then the

applicable Committed Loans shall be made or continued as, or converted to, Base

Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective

as of the last day of the Interest Period then in effect with respect to the

applicable Eurodollar Rate Committed Loans. If the Borrower requests a Borrowing

of, conversion to, or continuation of Eurodollar Rate Committed Loans in any

such Committed Loan Notice, but fails to specify an Interest Period, it will be

deemed to have specified an Interest Period of one month.

 

      (b)    Following receipt of a Committed Loan Notice, the Administrative

Agent shall promptly notify each Lender of its Pro Rata Share of the applicable

Committed Loans, and if no timely notice of a conversion or continuation is

provided by the Borrower, the Administrative Agent shall notify each Lender of

the details of any automatic conversion to Base Rate Loans described in the

preceding subsection. In the case of a Committed Borrowing, each Lender shall

make the amount of its Committed Loan available to the Administrative Agent in

immediately available funds at the Administrative Agent's Office not later than

2:00 p.m., New York time, on the Business Day specified in the applicable

Committed Loan Notice. Upon satisfaction of the applicable conditions set forth

in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section

4.01), the Administrative Agent shall, by no later than 3:00 p.m., New York

time, make all funds so received available to the Borrower in like funds as

received by the Administrative Agent either by (i) crediting the account of the

Borrower on the books of SunTrust Bank with the amount of such funds or (ii)

wire transfer of such funds, in each case in accordance with instructions

provided to the Administrative Agent by the Borrower; provided, however, that

if, on the date of the Committed Borrowing there are L/C Borrowings outstanding,

then the proceeds of such Borrowing shall be applied, first, to the payment in

full of any such L/C Borrowings and second, to the Borrower as provided above.

 

      (c)    Except as otherwise provided herein, a Eurodollar Rate Committed

Loan may be continued or converted only on the last day of the Interest Period

for such Eurodollar Rate Committed Loan. During the existence of a Default or

Event of Default, no Committed Loans may be requested as, converted to or

continued as Eurodollar Rate Committed Loans without the consent of the Required

Lenders, and the Required Lenders may demand that any or all of the then

outstanding Eurodollar Rate Committed Loans be converted to Base Rate Loans at

the end of the respective Interest Periods related to such Loans.

 

                                      -20-

<PAGE>

 

      (d)    The Administrative Agent shall promptly notify the Borrower and the

Lenders of the interest rate applicable to any Eurodollar Rate Committed Loan

upon determination of such interest rate. The determination of the Eurodollar

Rate by the Administrative Agent shall be conclusive in the absence of manifest

error. The Administrative Agent shall notify the Borrower and the Lenders of any

change in SunTrust Bank's prime rate used in determining the Base Rate promptly

following the public announcement of such change.

 

      (e)    After giving effect to all Committed Borrowings, all conversions of

Committed Loans from one Type to the other, and all continuations of Committed

Loans as the same Type, there shall not be more than twelve Interest Periods in

effect with respect to Committed Loans.

 

      2.03   COMPETITIVE BID LOANS.

 

      (a)    General. Subject to the terms and conditions set forth herein, each

Lender agrees that the Borrower may from time to time request the Lenders to

submit offers to make loans (each such loan, a "Competitive Bid Loan") to the

Borrower prior to the Maturity Date pursuant to this Section 2.03; provided,

however, that after giving effect to any Competitive Bid Borrowing, (i) the

aggregate Outstanding Amount of all Loans and L/C Obligations shall not exceed

the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of all

Competitive Bid Loans shall not exceed the Competitive Bid Loan Sublimit. There

shall not be more than ten different Interest Periods in effect with respect to

Competitive Bid Loans at any time. The Borrower shall have no obligation to

accept any Competitive Bid.

 

      (b)    Requesting Competitive Bids. The Borrower may request the submission

of Competitive Bids by delivering a Competitive Bid Request to the

Administrative Agent not later than 12:00 noon, New York time, (i) one Business

Day prior to the requested date of any Competitive Bid Borrowing that is to

consist of Absolute Rate Loans, or (ii) four Business Days prior to the

requested date of any Competitive Bid Borrowing that is to consist of Eurodollar

Margin Competitive Bid Loans. Each Competitive Bid Request shall specify (i) the

requested date of the Competitive Bid Borrowing (which shall be a Business Day),

(ii) the aggregate principal amount of Competitive Bid Loans requested (which

must be $10,000,000 or a whole multiple of $1,000,000 in excess thereof), (iii)

the Type of Competitive Bid Loans requested, and (iv) the duration of the

Interest Period with respect thereto, and shall be signed by a Responsible

Officer of the Borrower. No Competitive Bid Request shall contain a request for

(A) more than one Type of Competitive Bid Loan or (B) Competitive Bid Loans

having more than four different Interest Periods. Unless the Administrative

Agent otherwise agrees in its sole and absolute discretion, the Borrower may not

submit a Competitive Bid Request if it has submitted another Competitive Bid

Request within the prior five Business Days.

 

      (c)    Submitting Competitive Bids.

 

            (i)    The Administrative Agent shall promptly notify each Lender of

      each Competitive Bid Request received by it from the Borrower and the

      contents of such Competitive Bid Request.

 

            (ii)   Each Lender may (but shall have no obligation to) submit a

      Competitive Bid containing an offer to make one or more Competitive Bid

      Loans in response to such

 

                                       -21-

<PAGE>

 

      Competitive Bid Request. Such Competitive Bid must be delivered to the

      Administrative Agent not later than 10:30 a.m., New York time, (A) on the

      requested date of any Competitive Bid Borrowing that is to consist of

       Absolute Rate Loans (or such other date as the Company and Administrative

      Agent shall have mutually agreed and of which such Lenders have been

      notified), and (B) three Business Days prior to the requested date of any

      Competitive Bid Borrowing that is to consist of Eurodollar Margin

      Competitive Bid Loans (or such other date as the Company and

      Administrative Agent shall have mutually agreed and of which such Lenders

      have been notified); provided, however, that any Competitive Bid submitted

      by SunTrust Bank in its capacity as a Lender in response to any

      Competitive Bid Request must be submitted to the Administrative Agent not

      later than 10:15 a.m., New York time, on the date on which Competitive

      Bids are required to be delivered by the other Lenders in response to such

      Competitive Bid Request. Each Competitive Bid shall specify (A) the

      proposed date of the Competitive Bid Borrowing; (B) the principal amount

      of each Competitive Bid Loan for which such Competitive Bid is being made,

      which principal amount (x) may be equal to, greater than or less than the

      Commitment of the bidding Lender, (y) must be $5,000,000 or in a whole

      multiple of $1,000,000 in excess thereof, and (z) may not exceed the

      principal amount of Competitive Bid Loans for which Competitive Bids were

      requested; (C) if the proposed Competitive Bid Borrowing is to consist of

      Absolute Rate Loans, the Absolute Rate offered for each such Competitive

      Bid Loan and the Interest Period applicable thereto; (D) if the proposed

      Competitive Bid Borrowing is to consist of Eurodollar Margin Competitive

      Bid Loans, the Eurodollar Bid Margin with respect to each such Eurodollar

      Margin Competitive Bid Loan and the Interest Period applicable thereto;

      and (E) the identity of the bidding Lender.

 

            (iii) Any Competitive Bid shall be disregarded if it (A) is received

      after the applicable time specified in clause (ii) above, (B) is not

      substantially in the form of a Competitive Bid as specified herein, (C)

      contains qualifying, conditional or similar language, (D) proposes terms

      other than or in addition to those set forth in the applicable Competitive

      Bid Request, or (E) is otherwise not responsive to such Competitive 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 a Lender's Competitive Bid.

 

            (iv)   Subject only to the provisions of Sections 3.02, 3.03 (in the

      case of a Eurodollar Rate Competitive Bid Loan) and 4.02 and clause (iii)

      above, each Competitive Bid shall be irrevocable.

 

      (d)    Notice to Borrower of Competitive Bids. Not later than 11:00 a.m.,

New York time, (i) on the requested date of any Competitive Bid Borrowing that

is to consist of Absolute Rate Loans, or (ii) three Business Days prior to the

requested date of any Competitive Bid Borrowing that is to consist of Eurodollar

Margin Competitive Bid Loans, the Administrative Agent shall notify the Borrower

of the identity of each Lender that has submitted a Competitive

 

                                      -22-

<PAGE>

 

Bid that complies with Section 2.03(c) and of the terms of the offers contained

in each such Competitive Bid.

 

      (e)    Acceptance of Competitive Bids. Not later than 11:30 a.m., New York

time, (i) on the requested date of any Competitive Bid Borrowing that is to

consist of Absolute Rate Loans, and (ii) three Business Days prior to the

requested date of any Competitive Bid Borrowing that is to consist of Eurodollar

Margin Competitive Bid Loans, the Borrower shall notify the Administrative Agent

of its acceptance or rejection of the offers notified to it pursuant to Section

2.03(d). The Borrower shall be under no obligation to accept any Competitive Bid

and may in its sole and absolute discretion choose to reject all Competitive

Bids. In the case of acceptance, such notice shall specify the aggregate

principal amount of Competitive Bids for each Interest Period that is accepted.

The Borrower may accept any Competitive Bid in whole or in part; provided that:

 

            (i)    the aggregate principal amount of each Competitive Bid

      Borrowing may not exceed the applicable amount set forth in the related

      Competitive Bid Request;

 

            (ii)   the principal amount of each Competitive Bid Loan must be

      $5,000,000 or in a whole multiple of $1,000,000 in excess thereof;

 

            (iii) the acceptance of offers may be made only on the basis of

      ascending Absolute Rates or Eurodollar Bid Margins within each Interest

      Period; and

 

            (iv)   the Borrower may not accept any offer that is described in

      Section 2.03(c)(iii) or that otherwise fails to comply with the

      requirements hereof.

 

      (f)    Procedure for Identical Bids. If two or more Lenders have submitted

Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case

may be, for the same Interest Period, and the result of accepting all of such

Competitive Bids in whole (together with any other Competitive Bids at lower

Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted for such

Interest Period in conformity with the requirements of Section 2.03(e)(iii))

would be to cause the aggregate outstanding principal amount of the applicable

Competitive Bid Borrowing to exceed the amount specified therefor in the related

Competitive Bid Request, then, unless otherwise agreed by the Borrower, the

Administrative Agent and such Lenders, such Competitive Bids shall be accepted

as nearly as possible in proportion to the amount offered by each such Lender in

respect of such Interest Period, at such Absolute Rate or Eurodollar Bid Margin,

without regard to the requirements of Section 2.03(e)(ii).

 

      (g)    Notice to Lenders of Acceptance or Rejection of Bids. The

Administrative Agent shall promptly notify each Lender having submitted a

Competitive Bid whether or not its offer has been accepted and, if its offer has

been accepted, of the amount of the Competitive Bid Loan or Competitive Bid

Loans to be made by it on the date of the applicable Competitive Bid Borrowing.

Any Competitive Bid or portion thereof that is not accepted by the Borrower by

the applicable time specified in Section 2.03(e) shall be deemed rejected.

 

      (h)    Notice of Eurodollar Rate. If any Competitive Bid Borrowing is to

consist of Eurodollar Margin Loans, the Administrative Agent shall determine the

Eurodollar Rate for the relevant Interest Period, and promptly after making such

determination, shall notify the Borrower

 

                                       -23-

<PAGE>

 

and the Lenders that will be participating in such Competitive Bid Borrowing of

such Eurodollar Rate.

 

      (i)    Funding of Competitive Bid Loans. Each Lender that has received

notice pursuant to Section 2.03(g) that all or a portion of its Competitive Bid

has been accepted by the Borrower shall make the amount of its Competitive Bid

Loan(s) available to the Administrative Agent in immediately available funds at

the Administrative Agent's Office not later than 1:00 p.m., New York time, on

the date of the requested Competitive Bid Borrowing. Upon satisfaction of the

applicable conditions set forth in Section 4.02, the Administrative Agent shall,

by no later than 3:00 p.m., New York time, make all funds so received available

to the Borrower in like funds as received by the Administrative Agent.

 

      (j)    Notice of Range of Bids. After each Competitive Bid auction pursuant

to this Section 2.03, the Administrative Agent shall notify each Lender that

submitted a Competitive Bid in such auction of the ranges of bids submitted

(without the bidder's name) and accepted for each Competitive Bid Loan and the

aggregate amount of each Competitive Bid Borrowing.

 

      2.04   NEGOTIATED BID LOANS.

 

      (a)    General. Subject to the terms and conditions set forth herein, each

Lender agrees to entertain requests made by the Borrower from time to time to

make Loans (each such loan, a "Negotiated Bid Loan") to the Borrower prior to

the Maturity Date pursuant to this Section 2.04; provided, however, that (i) the

Lenders shall have no obligation to make any Negotiated Bid Loans, (ii) the

Borrower shall have no obligation to accept any offer to make any Negotiated Bid

Loan, and (iii) after giving effect to any Negotiated Bid Loan Borrowing, (A)

the aggregate Outstanding Amount of all Loans and L/C Obligations shall not

exceed the Aggregate Commitments, and (B) the aggregate Outstanding Amount of

all Negotiated Bid Loans shall not exceed the Negotiated Bid Loan Sublimit.

 

      (b)    Terms. Each Negotiated Bid Loan shall be made on terms agreed to by

the Borrower and the applicable Lender with respect thereto; provided that (i)

no Negotiated Bid Loan shall have a maturity date occurring subsequent to the

Maturity Date, (ii) no Negotiated Bid Loan shall be denominated in any currency

other than Dollars, and (iii) no obligations of the Borrower arising in

connection with any Negotiated Bid Loan shall at any time be secured by any Lien

upon any property, assets or revenues of the Borrower, any of its Subsidiaries

or any other Person, other than any right of set-off an applicable Lender may

have with respect to deposit accounts maintained by the Borrower with such

Lender.

 

      (c)    Notice to the Administrative Agent. Not later than 3:00 p.m., New

York time, on the date of any requested Negotiated Bid Loan Borrowing, the

Borrower shall deliver to the Administrative Agent (i) a notice specifying (A)

the identity of the respective Lender that has agreed to fund such Negotiated

Bid Loan Borrowing, (B) the anticipated date of such Negotiated Bid Loan

Borrowing, (C) the anticipated aggregate principal amount of such Negotiated Bid

Loan Borrowing, and (D) the anticipated maturity date of such Negotiated Bid

Loan; and (ii) such documents, instruments and other information with respect to

such Negotiated Bid Loan as the Administrative Agent may from time to time

reasonably request.

 

                                      -24-

<PAGE>

 

      (d)    Funding of Negotiated Bid Loans. Each Lender that has agreed to fund

such Negotiated Bid Loan Borrowing shall make the amount of its Negotiated Bid

Loan available to the Borrower by no later than 3:00 p.m., New York time, on the

date of such Borrowing.

 

      2.05   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 other Lenders

      set forth in this Section 2.05, (1) from time to time on any Business Day

      during the period from the Closing Date until the Letter of Credit

      Subfacility Expiration Date, to issue Letters of Credit for the account of

      the Borrower, and to amend or renew Letters of Credit previously issued by

      it, in accordance with subsection (b) below, and (2) to honor drafts under

      the Letters of Credit; and (B) the Lenders severally agree to participate

      in Letters of Credit issued for the account of the Borrower; provided that

      the L/C Issuer shall not be obligated to make any L/C Credit Extension

      with respect to any Letter of Credit, and no Lender shall be obligated to

      participate in, any Letter of Credit if as of the date of such L/C Credit

      Extension, (x) the Outstanding Amount of all L/C Obligations and all Loans

      would exceed the Aggregate Commitments, (y) the aggregate Outstanding

      Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata

      Share of the Outstanding Amount of all L/C Obligations and Swingline

      Exposure would exceed such Lender's Commitment, or (z) the Outstanding

      Amount of the L/C Obligations would exceed the Letter of Credit Sublimit.

      Within the foregoing limits, and subject to the terms and conditions

      hereof, the Borrower's ability to obtain Letters of Credit shall be fully

      revolving, and accordingly the Borrower may, during the foregoing period,

      obtain Letters of Credit to replace Letters of Credit that have expired or

      that have been drawn upon and reimbursed.

 

             (ii)   The L/C Issuer shall be under no obligation to issue any

      Letter of Credit if:

 

                  (A)    any order, judgment or decree of any Governmental

            Authority or arbitrator shall by its terms purport to enjoin or

             restrain the L/C Issuer from issuing such Letter of Credit, or any

            Law applicable to the L/C Issuer or any request or directive

            (whether or not having the force of law) from any Governmental

            Authority with jurisdiction over the L/C Issuer shall prohibit, or

            request that the L/C Issuer refrain from, the issuance of letters of

            credit generally or such Letter of Credit in particular or shall

            impose upon the L/C Issuer with respect to such Letter of Credit any

            restriction, reserve or capital requirement (for which the L/C

            Issuer is not otherwise compensated hereunder) not in effect on the

            Closing Date, or shall impose upon the L/C Issuer any unreimbursed

            loss, cost or expense which was not applicable on the Closing Date

            and which the L/C Issuer in good faith deems material to it;

 

                  (B)    subject to Section 2.05(b)(iii), the expiry date of such

            requested Letter of Credit would occur more than twelve months after

            the date of issuance or last renewal, unless the Required Lenders

            have approved such expiry date;

 

                                      -25-

<PAGE>

 

                  (C)    the expiry date of such requested Letter of Credit would

            occur after the Letter of Credit Subfacility Expiration Date, unless

            all the Lenders have approved such expiry date;

 

                  (D)    the issuance of such Letter of Credit would violate one

            or more policies of the L/C Issuer; or

 

                  (E)    such Letter of Credit is in a face amount less than

            $100,000, in the case of a commercial Letter of Credit, or $500,000,

            in the case of any other type of Letter of Credit, or is to be

            denominated in a currency other than Dollars.

 

            (iii) 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.

 

      (b)    Procedures for Issuance and Amendment of Letters of Credit;

Evergreen Letters of Credit.

 

            (i)    Each Letter of Credit shall be issued or amended, as the case

      may be, upon the request of the Borrower delivered to the L/C Issuer (with

      a copy to the Administrative Agent) in the form of a Letter of Credit

      Application, appropriately completed and signed by a Responsible Officer

      of the Borrower. Such Letter of Credit Application must be received by the

      L/C Issuer and the Administrative Agent not later than 11:00 a.m., New

      York time, at least two Business Days (or such later date and time as the

      L/C Issuer may agree in a particular instance in its sole discretion)

      prior to the proposed issuance date or date of amendment, as the case may

      be. In the case of a request for an initial issuance of a Letter of

      Credit, such Letter of Credit Application shall specify in form and detail

      satisfactory to the L/C Issuer: (A) the proposed issuance date of the

      requested Letter of Credit (which shall be a Business Day); (B) the amount

      thereof; (C) the expiry date thereof; (D) the name and address of the

      beneficiary thereof; (E) the documents to be presented by such beneficiary

      in case of any drawing thereunder; (F) the full text of any certificate to

      be presented by such beneficiary in case of any drawing thereunder; and

      (G) such other matters as the L/C Issuer may require. In the case of a

      request for an amendment of any outstanding Letter of Credit, such Letter

      of Credit Application shall specify in form and detail satisfactory to the

      L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date

      of amendment thereof (which shall be a Business Day); (C) the nature of

      the proposed amendment; and (D) such other matters as the L/C Issuer may

      require.

 

            (ii)   Promptly after its receipt of any Letter of Credit

      Application, but in any event no later than two Business Days prior to the

      proposed issuance date, the L/C Issuer will confirm with the

      Administrative Agent (by telephone or in writing) that the Administrative

      Agent has received a copy of such Letter of Credit Application from the

      Borrower and, if not, the L/C Issuer will provide the Administrative Agent

      with a copy thereof. Upon receipt by the L/C Issuer of confirmation from

      the Administrative Agent that the requested issuance or amendment is

      permitted in accordance with the terms

 

                                       -26-

<PAGE>

 

      hereof, then, subject to the terms and conditions hereof, the L/C Issuer

      shall, on the requested date, issue a Letter of Credit for the account of

      the Borrower or enter into the applicable amendment, as the case may be,

      in each case in accordance with the L/C Issuer's usual and customary

      business practices. Immediately upon the issuance of each Letter of

      Credit, each Lender shall be deemed to, and hereby irrevocably and

      unconditionally agrees to, purchase from the L/C Issuer a participation in

      such Letter of Credit in an amount equal to the product of such Lender's

      Pro Rata Share times the amount of such Letter of Credit. In addition and

      without limiting the foregoing, on the Closing Date, each Lender shall be

      deemed to have purchased a participation in each Existing Letter of Credit

      in an amount equal to the product of such Lender's Pro Rata Share times

      the amount of such Existing Letter of Credit.

 

            (iii) If the Borrower so requests in any applicable Letter of Credit

      Application, the L/C Issuer may, in it sole and absolute discretion, agree

      to issue a Letter of Credit that has automatic renewal provisions (each,

       an "Evergreen Letter of Credit"); provided that any such Evergreen Letter

      of Credit must permit the L/C Issuer to prevent any such renewal at least

      once in each twelve-month period (commencing with the date of issuance of

      such Letter of Credit) by giving prior notice to the beneficiary thereof

      not later than a day (the "Nonrenewal Notice Date") in each such

      twelve-month period to be agreed upon at the time such Letter of Credit is

      issued and have a final expiry date that is not later than the Letter of

      Credit Subfacility Expiration Date. Unless otherwise directed by the L/C

      Issuer, the Borrower shall not be required to make a specific request to

      the L/C Issuer for any such renewal. Once an Evergreen 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 renewal of such Letter of Credit

      at any time to a date not later than the Letter of Credit Subfacility

       Expiration Date; provided, however, that the L/C Issuer shall not permit

      any such renewal if (A) the L/C Issuer would have no obligation at such

      time to issue such Letter of Credit in its renewed form under the terms

      hereof, or (B) it has received notice (which may be by telephone or in

      writing) on or before the Business Day immediately preceding the

      Nonrenewal Notice Date (1) from the Administrative Agent that the Required

      Lenders have elected not to permit such renewal or (2) from the

      Administrative Agent, any Lender or the Borrower that one or more of the

      applicable conditions specified in Section 4.02 is not then satisfied.

      Notwithstanding anything to the contrary contained herein, the L/C Issuer

       shall have no obligation to permit the renewal of any Evergreen Letter of

      Credit at any time.

 

            (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

      Borrower and the Administrative Agent a true and complete copy of such

      Letter of Credit or amendment.

 

      (c)    Drawings and Reimbursements; Funding of Participations.

 

            (i)    Upon any drawing under any Letter of Credit, the L/C Issuer

      shall notify the Borrower and the Administrative Agent thereof. Not later

      than 1:00 p.m., New York time, on the date of any payment by the L/C

      Issuer under a Letter of Credit (each such date, an "Honor Date"), the

      Borrower shall reimburse the L/C Issuer through the

 

                                      -27-

<PAGE>

 

      Administrative Agent in an amount equal to the amount of such drawing. If

       the Borrower fails to so reimburse the L/C Issuer by such time, the

      Administrative Agent shall promptly notify each Lender of the Honor Date,

      the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and

      such Lender's Pro Rata Share thereof. In such event, the Borrower shall be

      deemed to have requested a Committed Borrowing of Base Rate Loans to be

      disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,

      without regard to the minimum and multiples specified in Section 2.02 for

      the principal amount of Base Rate Loans, but subject to the amount of the

      unutilized portion of the Aggregate Commitments and the conditions set

      forth in Section 4.02 (other than the delivery of a Committed Loan

      Notice). Any notice given by the L/C Issuer or the Administrative Agent

      pursuant to this Section 2.05(c)(i) may be given by telephone if

      immediately confirmed in writing; provided that the lack of such an

      immediate confirmation shall not affect the conclusiveness or binding

      effect of such notice.

 

            (ii)   Each Lender (including the Lender acting as L/C Issuer) shall

      upon any notice pursuant to Section 2.05(c)(i) make funds available to the

      Administrative Agent for the account of the L/C Issuer at the

      Administrative Agent's Office in an amount equal to its Pro Rata Share of

      the Unreimbursed Amount not later than 3:00 p.m., New York time, on the

      Business Day specified in such notice by the Administrative Agent,

      whereupon, subject to the provisions of Section 2.05(c)(iii), each Lender

      that so makes funds available shall be deemed to have made a Base Rate

      Loan to the Borrower in such amount. The Administrative Agent shall remit

      the funds so received to the L/C Issuer.

 

            (iii) With respect to any Unreimbursed Amount that is not fully

      refinanced by a Committed Borrowing of Base Rate Loans because the

      conditions set forth in Section 4.02 cannot be satisfied or for any other

      reason, the Borrower shall be deemed to have incurred from the L/C Issuer

      an L/C Borrowing in the amount of the Unreimbursed Amount that is not so

      refinanced, which L/C Borrowing shall be due and payable on demand

      (together with interest) and shall bear interest at the Default Rate. In

      such event, each Lender's payment to the Administrative Agent for the

      account of the L/C Issuer pursuant to Section 2.05(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 2.05.

 

            (iv)   Until each Lender funds its Committed Loan or L/C Advance

      pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any

      amount drawn under any Letter of Credit, interest in respect of such

      Lender's Pro Rata Share of such amount shall be solely for the account of

      the L/C Issuer.

 

            (v)    Each Lender's obligation to make Committed Loans or L/C

      Advances to reimburse the L/C Issuer for amounts drawn under Letters of

      Credit, as contemplated by this Section 2.05(c), shall be absolute and

      unconditional and shall not be affected by any circumstance, including (A)

      any set-off, counterclaim, recoupment, defense or other right which such

      Lender may have against the L/C Issuer, the Borrower or any other Person

      for any reason whatsoever, (B) the occurrence or continuance of a Default

      or Event of Default, or (C) any other occurrence, event or condition

      including, without limitation, the existence (or alleged existence) of any

      Material Adverse Effect, whether or not similar to

 

                                      -28-

<PAGE>

 

      any of the foregoing. Any such reimbursement shall not relieve or

      otherwise impair the obligation of the Borrower to reimburse the L/C

      Issuer for the amount of any payment made by the L/C Issuer under any

      Letter of Credit, together with interest as provided herein.

 

            (vi)   If any Lender fails to make available to the Administrative

      Agent for the account of the L/C Issuer any amount required to be paid by

       such Lender pursuant to the foregoing provisions of this Section 2.05(c)

      by the time specified in Section 2.05(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

      Federal Funds 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 clause (vi) shall be conclusive

      absent manifest error.

 

      (d)    Repayment of Participations.

 

            (i)    At any time after the L/C Issuer has made a payment under any

      Letter of Credit and has received from any Lender such Lender's L/C

      Advance in respect of such payment in accordance with Section 2.05(c), if

      the Administrative Agent receives for the account of the L/C Issuer any

      payment related to such Letter of Credit (whether directly from the

      Borrower or otherwise, including proceeds of Cash Collateral applied

      thereto by the Administrative Agent), or any payment of interest thereon,

      the Administrative Agent will distribute to such Lender its Pro Rata Share

      thereof in the same funds as those received by the Administrative Agent.

 

            (ii)   If any payment received by the Administrative Agent for the

      account of the L/C Issuer pursuant to Section 2.05(c)(i) is required to be

      returned, each Lender shall pay to the Administrative Agent for the

      account of the L/C Issuer its Pro Rata Share thereof on demand of the

      Administrative Agent, plus interest thereon from the date of such demand

      to the date such amount is returned by such Lender, at a rate per annum

      equal to the Federal Funds Rate from time to time in effect.

 

      (e)    Obligations Absolute. The obligation of the Borrower to reimburse

the L/C Issuer for each drawing under each Letter of Credit, and to repay each

L/C Borrowing and each drawing under a Letter of Credit that is refinanced by a

Borrowing of Committed Loans, shall be absolute, unconditional and irrevocable,

and shall be paid strictly in accordance with the terms of this Agreement under

all circumstances, including the following:

 

            (i)    any lack of validity or enforceability of such Letter of

      Credit, this Agreement, or any other agreement or instrument relating

      thereto;

 

            (ii)   the existence of any claim, counterclaim, set-off, defense or

      other right that the Borrower may have at any time against any beneficiary

      or any transferee of such Letter of Credit (or any Person for whom any

      such beneficiary or any such transferee may be acting), the L/C Issuer or

      any other Person, whether in connection with this

 

                                      -29-

<PAGE>

 

      Agreement, the transactions contemplated hereby or by such Letter of

      Credit or any agreement or instrument relating thereto, or any unrelated

      transaction;

 

            (iii) any draft, demand, certificate or other document presented

      under such Letter of Credit proving to be forged, fraudulent, invalid or

      insufficient in any respect or any statement therein being untrue or

      inaccurate in any respect; or any loss or delay in the transmission or

      otherwise of any document required in order to make a drawing under such

      Letter of Credit;

 

            (iv)   any payment by the L/C Issuer under such Letter of Credit

      against presentation of a draft or certificate that does not strictly

      comply with the terms of such Letter of Credit; or any payment made by the

      L/C Issuer under such Letter of Credit to any Person purporting to be a

      trustee in bankruptcy, debtor-in-possession, assignee for the benefit of

      creditors, liquidator, receiver or other representative of or successor to

      any beneficiary or any transferee of such Letter of Credit, including any

      arising in connection with any proceeding under any Debtor Relief Law; or

 

            (v)    any other circumstance or happening whatsoever, whether or not

      similar to any of the foregoing, including any other circumstance that

      might otherwise constitute a defense available to, or a discharge of, the

      Borrower.

 

      The Borrower shall promptly examine a copy of each Letter of Credit and

each amendment thereto that is delivered to it and, in the event of any claim of

noncompliance with the Borrower's instructions or other irregularity, the

Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively

deemed to have waived any such claim against the L/C Issuer and its

correspondents unless such notice is given as aforesaid.

 

      (f)    Role of L/C Issuer. Each Lender and the Borrower agree that, in

paying any drawing under a Letter of Credit, the L/C Issuer shall not have any

responsibility to obtain any document (other than any sight draft, certificates

and documents expressly required by the Letter of Credit) or to ascertain or

inquire as to the validity or accuracy of any such document or the authority of

the Person executing or delivering any such document. No Agent-Related Person

nor any of the respective correspondents, participants or assignees of the L/C

Issuer shall be liable to any Lender for (i) any action taken or omitted in

connection herewith at the request or with the approval of the Lenders or the

Required Lenders, as applicable; (ii) any action taken or omitted in the absence

of gross negligence or willful misconduct; or (iii) the due execution,

effectiveness, validity or enforceability of any document or instrument related

to any Letter of Credit or Letter of Credit Application. The Borrower hereby

assumes all risks of the acts or omissions of any beneficiary or transferee with

respect to its use of any Letter of Credit; provided, however, that this

assumption is not intended to, and shall not, preclude the Borrower's pursuing

such rights and remedies as it may have against the beneficiary or transferee at

law or under any other agreement. No Agent-Related Person, nor any of the

respective correspondents, participants or assignees of the L/C Issuer, shall be

liable or responsible for any of the matters described in clauses (i) through

(v) of Section 2.05(e); provided, however, that anything in such clauses to the

contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,

and the L/C Issuer may be liable to the Borrower, to the extent, but only to the

extent, of any direct, as opposed to consequential or exemplary, damages

suffered by the Borrower which the

 

                                      -30-

<PAGE>

 

Borrower proves were caused by the L/C Issuer's willful misconduct or gross

negligence or the L/C Issuer's willful failure to pay under any Letter of Credit

after the presentation to it by the beneficiary of a sight draft and

certificate(s) strictly complying with the terms and conditions of a Letter of

Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer

may accept documents that appear on their face to be in order, without

responsibility for further investigation, regardless of any notice or

information to the contrary, and the L/C Issuer shall not be responsible for the

validity or sufficiency of any instrument transferring or assigning or

purporting to transfer or assign a Letter of Credit or the rights or benefits

thereunder or proceeds thereof, in whole or in part, which may prove to be

invalid or ineffective for any reason.

 

      (g)    Cash Collateral. Upon the request of the Administrative Agent, (i)

if the L/C Issuer has honored any full or partial drawing request under any

Letter of Credit and such drawing has resulted in an L/C Borrowing that has not

been converted into a Borrowing under the terms hereof, or (ii) if, as of the

Letter of Credit Subfacility Expiration Date, any Letter of Credit may for any

reason remain outstanding and partially or wholly undrawn, the Borrower shall

immediately Cash Collateralize the then Outstanding Amount of all L/C

Obligations (in an amount equal to such Outstanding Amount).

 

      (h)    Applicability of ISP98 and UCP. Unless otherwise expressly agreed by

the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules

of the "International Standby Practices 1998" published by the Institute of

International Banking Law & Practice (or such later version thereof as may be in

effect at the time of issuance) shall apply to each standby Letter of Credit,

and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,

as most recently published by the International Chamber of Commerce (the "ICC")

at the time of issuance (including the ICC decision published by the Commission

on Banking Technique and Practice on April 6, 1998 regarding the European single

currency (euro)) shall apply to each commercial Letter of Credit.

 

      (i)    Letter of Credit Fees. The Borrower shall pay to the Administrative

Agent for the account of each Lender in accordance with its Pro Rata Share a

letter of credit fee equal to the margin listed under the heading "Letters of

Credit" in the definition of Applicable Rate multiplied by the actual daily

maximum amount available to be drawn under all outstanding Letters of Credit.

Such fee shall be due and payable on the last Business Day of each March, June,

September and December, commencing with the first such date to occur after the

issuance of such Letter of Credit, and on the Letter of Credit Subfacility

Expiration Date. If there is any change in the Applicable Rate during any

quarter, the actual daily amount of each standby Letter of Credit shall be

computed and multiplied by the Applicable Rate separately for each period during

such quarter that such Applicable Rate was in effect.

 

      (j)    Fronting Fee and Documentary and Processing Charges Payable to L/C

Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a

fronting fee in an amount (i) with respect to each commercial Letter of Credit,

a per annum rate equal to 0.125% of the amount of such Letter of Credit, due and

payable upon the issuance thereof, and (ii) with respect to each standby Letter

of Credit, a per annum rate equal to 0.125% on the daily maximum amount

available to be drawn thereunder, due and payable quarterly in arrears on the

last Business Day of each March, June, September and December, commencing with

the first such date to occur after the issuance of such Letter of Credit, and on

the Letter of Credit Subfacility

 

                                      -31-

<PAGE>

 

Expiration Date. In addition, the Borrower shall pay directly to the L/C Issuer

for its own account the customary issuance, presentation, amendment and other

processing fees, and other standard costs and charges, of the L/C Issuer

relating to letters of credit as from time to time in effect. Such fees and

charges are due and payable on demand and are nonrefundable.

 

      (k)    Conflict with Letter of Credit Application. In the event of any

conflict between the terms hereof and the terms of any Letter of Credit

Application, the terms hereof shall control.

 

      2.06   PREPAYMENTS.

 

      (a)    The Borrower may, upon notice to the Administrative Agent, at any

time or from time to time voluntarily prepay Committed Loans and Swingline Loans

in whole or in part without premium or penalty; provided that (i) such notice

must be received by the Administrative Agent (A) not later than 11:00 a.m., New

York time, three Business Days prior to any date of prepayment of Eurodollar

Rate Committed Loans, and (B) not later than 9:00 a.m., New York time, on the

date of prepayment of Base Rate Loans and Swingline Loans; (ii) any prepayment

of Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000

or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of

Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple

of $1,000,000 in excess thereof; (iv) any prepayment of Swingline Loans shall be

in an amount that would be permitted in the case of an advance of a Swingline

Loan pursuant to Section 2.16, or, in the case of (ii), (iii) and (iv) if a

lesser amount, the remaining principal amount of the applicable Loans in any

outstanding Borrowing. Each such notice shall specify the date and amount of

such prepayment and the Type(s) of Committed Loans or Swingline Loans to be

prepaid. The Administrative Agent will promptly notify each Lender of its

receipt of each such notice, and of such Lender's Pro Rata Share of such

prepayment. If such notice is given by the Borrower, the Borrower shall make

such prepayment and the payment amount specified in such notice shall be due and

payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan

shall be accompanied by all accrued interest thereon, together with any

additional amounts required pursuant to Section 3.05. Each such prepayment shall

be applied to the Committed Loans or Swingline Loans, as the case may be, of the

Lenders in accordance with their respective Pro Rata Shares.

 

      (b)    No Competitive Bid Loan may be prepaid without the prior consent of

the applicable Lender of such Competitive Bid Loan.

 

      (c)    The Borrower may prepay Negotiated Bid Loans only in accordance with

the respective terms and conditions agreed to by the Borrower and the applicable

Lender in respect of any such Negotiated Bid Loan.

 

      (d)    If for any reason the Outstanding Amount of all Loans and L/C

Obligations at any time exceeds the Aggregate Commitments then in effect, the

Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C

Obligations in an aggregate amount equal to such excess.

 

      2.07   OPTIONAL REDUCTION OR TERMINATION OF COMMITM