Exhibit 10.1


 


EXECUTION VERSION


 


CREDIT AGREEMENT


 


Dated as of August 20, 2007


 


by and among


 


VEECO INSTRUMENTS INC.


 


and


 


HSBC BANK USA, NATIONAL ASSOCIATION


as Administrative Agent,


 


NORTH FORK BANK


as Documentation Agent,


 


and


 


THE LENDERS PARTY HERETO


 


 


Lead Arranger:


 


HSBC BANK USA, NATIONAL ASSOCIATION


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I
  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Terms
  Generally

  	
  19

  
	
  SECTION 1.03.

  	
  Currency
  Equivalents Generally

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE II
  LOANS

  	
  19

  
	
  SECTION 2.01.

  	
  Revolving
  Credit Loans

  	
  19

  
	
  SECTION 2.02.

  	
  Revolving
  Credit Note

  	
  21

  
	
  SECTION 2.03.

  	
  Letters of
  Credit

  	
  21

  
	
  SECTION 2.04.

  	
  Swingline
  Loans

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;

  	
   

  
	
  FEES AND PAYMENTS

  	
  26

  
	
  SECTION 3.01.

  	
  Interest Rate;
  Continuation and Conversion of Loans

  	
  26

  
	
  SECTION 3.02.

  	
  Use of
  Proceeds

  	
  28

  
	
  SECTION 3.03.

  	
  Prepayments

  	
  28

  
	
  SECTION 3.04.

  	
  Fees

  	
  28

  
	
  SECTION 3.05.

  	
  Inability to
  Determine Interest Rate

  	
  29

  
	
  SECTION 3.06.

  	
  Illegality

  	
  30

  
	
  SECTION 3.07.

  	
  Increased Costs

  	
  30

  
	
  SECTION 3.08.

  	
  Indemnity

  	
  31

  
	
  SECTION 3.09.

  	
  Mitigation,
  Obligations; Replacement of Lenders

  	
  31

  
	
  SECTION 3.10.

  	
  Taxes

  	
  32

  
	
  SECTION 3.11.

  	
  Pro Rata
  Treatment and Payments

  	
  34

  
	
  SECTION 3.12.

  	
  Funding and
  Disbursement of Loans

  	
  34

  
	
  SECTION 3.13.

  	
  Judgment
  Currency

  	
  35

  
	
  SECTION 3.14.

  	
  Foreign
  Exchange Indemnity

  	
  35

  
	
  SECTION 3.15.

  	
  Further
  Modifications

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS AND WARRANTIES

  	
  36

  
	
  SECTION 4.01.

  	
  Organization,
  Powers

  	
  36

  
	
  SECTION 4.02.

  	
  Authorization
  of Borrowing, Enforceable Obligations

  	
  36

  
	
  SECTION 4.03.

  	
  Financial
  Condition

  	
  37

  



 


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  SECTION 4.04.

  	
  Taxes

  	
  37

  
	
  SECTION 4.05.

  	
  Title to
  Properties

  	
  38

  
	
  SECTION 4.06.

  	
  Litigation

  	
  38

  
	
  SECTION 4.07.

  	
  Agreements

  	
  38

  
	
  SECTION 4.08.

  	
  Compliance
  with ERISA

  	
  38

  
	
  SECTION 4.09.

  	
  Federal
  Reserve Regulations; Use of Proceeds

  	
  38

  
	
  SECTION 4.10.

  	
  Approval

  	
  39

  
	
  SECTION 4.11.

  	
  Subsidiaries
  and Affiliates

  	
  39

  
	
  SECTION 4.12.

  	
  Hazardous
  Materials

  	
  39

  
	
  SECTION 4.13.

  	
  Investment
  Company Act

  	
  39

  
	
  SECTION 4.14.

  	
  No Default

  	
  39

  
	
  SECTION 4.15.

  	
  Credit Arrangements

  	
  39

  
	
  SECTION 4.16.

  	
  Permits and
  Licenses

  	
  40

  
	
  SECTION 4.17.

  	
  Compliance
  with Law

  	
  40

  
	
  SECTION 4.18.

  	
  Disclosure

  	
  40

  
	
  SECTION 4.19.

  	
  Labor Disputes
  and Acts of God

  	
  40

  
	
  SECTION 4.20.

  	
  Pledge
  Agreements

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  CONDITIONS OF LENDING

  	
  40

  
	
  SECTION 5.01.

  	
  Conditions to
  Initial Extension of Credit

  	
  40

  
	
  SECTION 5.02.

  	
  Conditions to
  Extensions of Credit

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  AFFIRMATIVE COVENANTS

  	
  43

  
	
  SECTION 6.01.

  	
  Existence,
  Properties, Insurance

  	
  43

  
	
  SECTION 6.02.

  	
  Payment of
  Indebtedness and Taxes

  	
  43

  
	
  SECTION 6.03.

  	
  Financial
  Statements, Reports, etc.

  	
  44

  
	
  SECTION 6.04.

  	
  Books and
  Records; Access to Premises

  	
  46

  
	
  SECTION 6.05.

  	
  Notice of
  Adverse Change

  	
  46

  
	
  SECTION 6.06.

  	
  Notice of
  Default

  	
  46

  
	
  SECTION 6.07.

  	
  Notice of
  Litigation and Investigations

  	
  46

  
	
  SECTION 6.08.

  	
  Notice of
  Default in Other Agreements

  	
  47

  
	
  SECTION 6.09.

  	
  Notice of
  ERISA Event

  	
  47

  
	
  SECTION 6.10.

  	
  Notice of
  Environmental Law Violations

  	
  47

  
	
  SECTION 6.11.

  	
  Compliance
  with Applicable Laws

  	
  47

  
	
  SECTION 6.12.

  	
  Additional
  Subsidiaries

  	
  47

  
	
  SECTION 6.13.

  	
  Environmental Laws

  	
  48

  



 


ii

















 


	
  SECTION 6.14.

  	
  Non-Material
  Subsidiaries

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  NEGATIVE COVENANTS

  	
  49

  
	
  SECTION 7.01.

  	
  Indebtedness

  	
  49

  
	
  SECTION 7.02.

  	
  Liens

  	
  50

  
	
  SECTION 7.03.

  	
  Guaranties

  	
  52

  
	
  SECTION 7.04.

  	
  Sale of Assets

  	
  52

  
	
  SECTION 7.05.

  	
  Sales of
  Receivables

  	
  53

  
	
  SECTION 7.06.

  	
  Loans and
  Investments

  	
  53

  
	
  SECTION 7.07.

  	
  Nature of
  Business

  	
  53

  
	
  SECTION 7.08.

  	
  Sale and
  Leaseback

  	
  53

  
	
  SECTION 7.09.

  	
  Federal
  Reserve Regulations

  	
  53

  
	
  SECTION 7.10.

  	
  Accounting
  Policies and Procedures

  	
  53

  
	
  SECTION 7.11.

  	
  Hazardous
  Materials

  	
  54

  
	
  SECTION 7.12.

  	
  Limitations on
  Fundamental Changes, Limitations on Consideration; Amendments of
  Organizational Documents

  	
  54

  
	
  SECTION 7.13.

  	
  Financial
  Condition Covenants

  	
  54

  
	
  SECTION 7.14.

  	
  Subordinated
  Debt

  	
  55

  
	
  SECTION 7.15.

  	
  Dividends

  	
  55

  
	
  SECTION 7.16.

  	
  Transactions
  with Affiliates

  	
  55

  
	
  SECTION 7.17.

  	
  Negative
  Pledge

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  EVENTS OF DEFAULT

  	
  55

  
	
  SECTION 8.01.

  	
  Events of
  Default

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX THE
  ADMINISTRATIVE AGENT

  	
  58

  
	
  SECTION 9.01.

  	
  Appointment,
  Powers and Immunities

  	
  58

  
	
  SECTION 9.02.

  	
  Reliance by
  Administrative Agent

  	
  58

  
	
  SECTION 9.03.

  	
  Events of
  Default

  	
  58

  
	
  SECTION 9.04.

  	
  Rights as a
  Lender

  	
  59

  
	
  SECTION 9.05.

  	
  Indemnification

  	
  59

  
	
  SECTION 9.06.

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  59

  
	
  SECTION 9.07.

  	
  Failure to Act

  	
  60

  
	
  SECTION 9.08.

  	
  Resignation of
  the Administrative Agent

  	
  60

  
	
  SECTION 9.09.

  	
  Sharing of
  Collateral and Payments

  	
  60

  



 


iii

















 


	
  ARTICLE X
  MISCELLANEOUS

  	
  61

  
	
  SECTION 10.01.

  	
  Notices

  	
  61

  
	
  SECTION 10.02.

  	
  Effectiveness;
  Survival; Integration

  	
  63

  
	
  SECTION 10.03.

  	
  Expenses

  	
  64

  
	
  SECTION 10.04.

  	
  Amendments and
  Waivers

  	
  64

  
	
  SECTION 10.05.

  	
  Successors and
  Assigns; Participations

  	
  65

  
	
  SECTION 10.06.

  	
  No Waiver;
  Cumulative Remedies

  	
  67

  
	
  SECTION 10.07.

  	
  APPLICABLE LAW

  	
  67

  
	
  SECTION 10.08.

  	
  SUBMISSION TO
  JURISDICTION

  	
  67

  
	
  SECTION 10.09.

  	
  Severability

  	
  68

  
	
  SECTION 10.10.

  	
  Right of
  Setoff

  	
  68

  
	
  SECTION 10.11.

  	
  Confidentiality

  	
  69

  
	
  SECTION 10.12.

  	
  Headings

  	
  69

  
	
  SECTION 10.13.

  	
  Construction

  	
  69

  
	
  SECTION 10.14.

  	
  Counterparts

  	
  69

  
	
  SECTION 10.15.

  	
  Special
  Provisions with Respect to Subordinated Notes

  	
  70

  
	
  SECTION 10.16.

  	
  US Patriot Act

  	
  70

  



 


iv

















 


SCHEDULES


 


	
  Schedule 1.01(a)

  	
  -

  	
  Guarantors

  
	
  Schedule 1.01(b)

  	
  -

  	
  Existing Mortgage Debt

  
	
  Schedule 4.06

  	
  -

  	
  Litigation

  
	
  Schedule 4.11

  	
  -

  	
  Subsidiaries and
  Affiliates

  
	
  Schedule 4.15

  	
  -

  	
  Credit Arrangements

  
	
  Schedule 5.01(j)

  	
  -

  	
  Adverse Changes

  
	
  Schedule 6.01

  	
  -

  	
  Exceptions to Existence

  
	
  Schedule 7.01

  	
  -

  	
  Permitted Indebtedness
  (existing after closing)

  
	
  Schedule 7.02

  	
  -

  	
  Existing Liens

  
	
  Schedule 7.03

  	
  -

  	
  Existing Guarantees

  
	
  Schedule 7.12

  	
  -

  	
  Permitted Acquisitions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Revolving Credit
  Note

  
	
  Exhibit B

  	
  -

  	
  Form of Swingline Note

  
	
  Exhibit C

  	
  -

  	
  Intentionally omitted

  
	
  Exhibit D

  	
  -

  	
  Intentionally omitted

  
	
  Exhibit E-1

  	
  -

  	
  Form of Company Pledge
  Agreement

  
	
  Exhibit E-2

  	
  -

  	
  Form of Guarantor Pledge
  Agreement

  
	
  Exhibit F

  	
  -

  	
  Form of Assignment and
  Acceptance Agreement

  
	
  Exhibit G

  	
  -

  	
  Form of Opinion of Counsel

  
	
  Exhibit H

  	
  -

  	
  Form of U.S. Tax
  Compliance Certificate

  



 


v

















 


CREDIT AGREEMENT
dated as of August 20, 2007, by and among VEECO
INSTRUMENTS INC., a Delaware corporation (the “Company”), the LENDERS which from time to time are parties
to this Agreement (individually, a “Lender” and, collectively, the “Lenders”), HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association organized under the laws of
the United States of America, as Administrative Agent (the “Administrative
Agent”) and NORTH FORK BANK, a New York State
chartered bank, as Documentation Agent (the “Documentation Agent”).


 


BACKGROUND


 


WHEREAS, the Company, the lenders named therein (the “Original Lenders”) and
HSBC Bank USA, National Association, as Administrative Agent, are parties to a
Credit Agreement, dated as of March 15, 2005 (as amended, the “Prior Credit
Agreement”) pursuant to which the Original Lenders agreed to make Loans (as
therein defined) to the Company;


 


WHEREAS, the Company has requested that the Prior Credit Agreement be amended
and restated as hereinafter provided to, among other things, modify the group
of Lenders;


 


WHEREAS, the Administrative Agent and the Lenders are willing to agree to such
amendment and restatement and to extend credit to the Company on the terms and
conditions set forth herein.


 


NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Company, the Administrative Agent and the
Lenders hereby agree that the Prior Credit Agreement shall be, and hereby is,
amended and restated in its entirety and the parties hereto agree as follows:


 


RECITALS


 


The Company has requested
the Lenders to extend credit from time to time and the Lenders are willing to
extend such credit to the Company, subject to the terms and conditions
hereinafter set forth.


 


Accordingly, the parties
hereto agree as follows:


 


ARTICLE I

DEFINITIONS
AND ACCOUNTING TERMS


 


SECTION
1.01.            Definitions.  As
used herein, the following terms shall have the following meanings:


 


“Additional Lender” shall
mean any financial institution which becomes a Lender hereunder pursuant to
Section 10.05(c) hereof.


 


“Administrative Agent” or “Agent”
shall mean HSBC Bank USA, National Association in its capacity as
Administrative Agent for the Lenders under this Agreement or its successor
Administrative Agent permitted pursuant to Section 9.08 hereof.


 


“Affiliate” shall mean, with
respect to a specified Person, another Person which, directly or indirectly,
controls or is controlled by or is under common control with such specified
Person. For the purpose of this definition, “control” of a Person shall mean
the power, direct or indirect, to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting


 


H-1

















 


securities, by contract or otherwise;
provided that, in any event, any Person who owns directly or indirectly 25% or
more of the securities having ordinary voting power for the election of
directors or other governing body of a corporation or 25% or more of the
partnership or other ownership interests of any Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person.


 


“Aggregate Letters of Credit
Outstandings” shall mean, on the date of determination, the sum of (a) the
aggregate maximum stated amount at such time which is available or available in
the future to be drawn under all outstanding Letters of Credit and (b) the
aggregate amount of all payments on account of drawings under all outstanding
Letters of Credit that has not been reimbursed by the Company.


 


“Aggregate Outstandings”
shall mean, on the date of determination, the sum of (a) the Aggregate Letters
of Credit Outstandings at such time, (b) the aggregate outstanding principal
amount of all Revolving Credit Loans at such time, and (c) the aggregate
outstanding principal amount of all Swingline Loans at such time.


 


“Agreement” shall mean this
Credit Agreement, dated as of August 20, 2007, as it may hereafter be amended,
restated, supplemented or otherwise modified from time to time.


 


“Applicable Currency” shall
mean, as to any particular payment or Loan, Dollars or the other Approved
Currency in which it is denominated or is payable.


 


“Applicable Currency
Equivalent” shall mean, with respect to an amount denominated in Dollars which
is to be converted to any other Applicable Currency, the amount of such
Applicable Currency required to purchase such amount of Dollars at the Relevant
Exchange Rate.


 


“Applicable Offshore Time”
shall mean, with respect to borrowings and payments in Approved Currencies
other than Dollars, the local times in the country of settlement for such
Approved Currencies as specified from time to time by the Administrative Agent
to the parties hereto.


 


“Applicable Rate” shall mean
(a) with respect to each Eurocurrency Loan, the percentage set forth below
under the heading “Eurocurrency Margin” opposite the applicable ratio of
Consolidated Senior Funded Debt to Consolidated EBITA (the “Applicable Ratio”),
(b) with respect to each Prime Rate Loan, the percentage set forth below under
the heading “Prime Rate Margin” opposite the Applicable Ratio and (c) with
respect to the Unused Fee payable pursuant to Section 3.04(a) of this
Agreement, the percentage set forth below under the heading “Unused Fee Rate”
opposite the Applicable Ratio:


 


 


	
  Consolidated Senior Funded

  Debt to Consolidated EBITA

  	
   

  	
  Eurocurrency
  Margin 

  (360 day basis)

  	
   

  	
  Prime
  Rate Margin

  (360 day basis)

  	
   

  	
  Unused
  Fee

  Rate

  	
   

  
	
  Greater than 2.00:1.00

  	
   

  	
  1.50

  	
  %

  	
  -0-

  	
  %

  	
  0.30

  	
  %

  
	
  Less than or equal to 2.00:1:00

  	
   

  	
  1.25

  	
  %

  	
  -0-

  	
  %

  	
  0.25

  	
  %

  



 


Notwithstanding the foregoing, during the
period commencing on the Closing Date and ending on September 30, 2007, (a) the
Applicable Rate with respect to each Eurocurrency Loan shall be 1.25% per
annum, (b) the Applicable Rate with respect to each Prime Rate Loan shall be
0.00% per annum and (c) the Applicable Rate with respect to the Unused Fee
payable pursuant to Section 3.04(a) hereof shall be .25% per annum. The
Applicable Rate will be set or reset quarterly with respect to each Loan and
the


 


H-2

















 


Unused Fee on the first Business Day of the
fiscal quarter of the Company that commences after the date on which the
financial statements referred to in Section 6.03(a) or Section 6.03(b) hereof
(i.e., the Applicable Rate to be set on October 1, 2007 shall be determined
based upon the financial statements of the Company for the fiscal quarter ended
June 30, 2007), as the case may be, are required to be delivered to the
Administrative Agent, and shall (a) apply to all Eurocurrency Loans and Prime
Rate Loans outstanding on such date or to be made on or after such date and (b)
be used to calculate the Unused Fee as described in Section 3.04(a) hereof on
or after such date, and, in the case of each of (a) and (b), until, but not
including, the next date on which the Applicable Rate is reset in accordance
with the provisions hereof; provided, however, that if any financial statements
are not received by the Administrative Agent within the time period relating to
such financial statements as provided in Section 6.03(a) or Section 6.03(b)
hereof, as the case may be, the Applicable Rate used to calculate the Unused
Fee as described in Section 3.04(a) hereof and the Applicable Rate with respect
to all Eurocurrency Loans and Prime Rate Loans outstanding on such date or to
be made on or after the date the Applicable Rate should have been reset in
accordance with the foregoing provisions (i.e., assuming timely delivery of the
requisite financial statements), until the day which is the first Business Day
of the fiscal quarter of the Company which commences following the receipt by
the Administrative Agent of such financial statements, will be set based on an
Applicable Ratio of greater than 2.00:1.00; and further provided, however, that
the Administrative Agent and the Lenders shall not in any way be deemed to have
waived any Event of Default or any of their remedies hereunder (including,
without limitation, remedies provided in Article VIII hereof) in connection
with the provisions of the foregoing proviso. During the occurrence and
continuance of an Event of Default, no downward adjustment, and only upward
adjustments, shall be made to the Applicable Rate.


 


“Approved Currencies” shall
mean Dollars, British pounds sterling, Japanese yen, and the Euro, and, with
the consent of each of the Lenders, any other currencies which are freely
transferable and convertible into Dollars and in which dealings in deposits are
carried out in the London interbank market.


 


“Assignment and Acceptance
Agreement” shall mean an Assignment and Acceptance Agreement entered into by a
Lender and an assignee and accepted by the Administrative Agent and, so long as
no Event of Default shall have occurred and be continuing, the Company (such
consent not to be unreasonably withheld or delayed), in the form attached
hereto as Exhibit F or any other form approved by
the Administrative Agent.


 


“Auditor” shall have the
meaning specified in Section 6.03(a) hereof.


 


“Borrowing Date” shall mean,
with respect to any Loan or Letter of Credit, the date specified in any notice
given pursuant to Section 2.01(b) and Section 2.03(a) hereof on which such Loan
or Letter of Credit is requested by the Company.


 


“Business Day” shall mean
any day not a Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by law to close, and


 


(a)           if the applicable Business Day relates to any Eurocurrency
Loan denominated in Dollars, means such a day on which dealings are carried on
in the applicable offshore Dollar interbank market;


 


(b)           if the applicable Business Day relates to an Obligation
denominated in the Euro, any such day which is (i) for payments or purchases of
the Euro, a TARGET Business Day, and (ii) for all other purposes, including the
giving and receiving of notices hereunder, a TARGET Business Day on


 


H-3

















 


which banks are generally open for business
in London, Frankfurt and in any other principal financial center as the
Administrative Agent may from time to time determine for this purpose; and


 


(c)           if the applicable Business Day relates to an Obligation
denominated in any Applicable Currency other than Dollars, a day on which
commercial banks are open for foreign exchange business in London, England, and
on which dealings in the relevant Applicable Currency are carried on in the
applicable offshore foreign exchange interbank market in which disbursements of
or payment in such Applicable Currency will be made or received hereunder.


 


A “TARGET Business Day” is a
day when TARGET (Trans-European Automated Real-time Gross settlement Express
Transfer system), or any successor thereto, is scheduled to be open for
business.


 


“Capital Lease” shall mean,
with respect to any Person, as of the date of determination, any lease the
obligations of which are required to be capitalized on a balance sheet of such
Person in accordance with Generally Accepted Accounting Principles applied on a
consistent basis.


 


“Cash Collateral” shall mean
a deposit by the Company made in immediately available funds to a cash
collateral account at the Administrative Agent and the taking of all action
required to provide the Administrative Agent, for the ratable benefit of the
Lenders, a first priority perfected security interest in such deposit.


 


“Change of Control” shall
mean any event or condition which results in any Person or “group” (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended), other than a Person or group that is actively involved in the day to
day management of the Company on the Closing Date, (i) having acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of the Company (or other securities
convertible into such securities) representing 40% or more of the combined
voting power of all securities of the Company entitled to vote in the election
of directors of the Company; or (ii) obtaining the power (whether or not
exercised) to elect a majority of the Company’s directors.


 


“Chief Financial Officer”
shall mean the Chief Financial Officer of the Company or, in the event no such
officership exists, the principal financial officer or principal accounting
officer of the Company.


 


 “Closing Date” shall mean August 20, 2007.


 


“Code” shall mean the
Internal Revenue Code of 1986, and the regulations promulgated thereunder, each
as amended from time to time.


 


“Commercial Letter of Credit”
shall mean any sight letter of credit issued for the account of a Person for
the purpose of providing the primary payment mechanism in connection with the
purchase of materials, goods, or services by such Person.


 


“Commitment Proportion”
shall mean, with respect to each Lender at the time of determination, the
ratio, expressed as a percentage, which (a) such Lender’s Revolving Credit
Commitments bear to the Total Commitment or (b) if the Revolving Credit
Commitments have expired or have been terminated, the outstanding principal
balance of the Revolving Credit Loans held by such Lender at such time bear to
the principal balance of the Revolving Credit Loans held by all Lenders
outstanding at such time.


 


H-4

















 


“Commitments” shall mean,
collectively, the Revolving Credit Commitments and the Swingline Commitments.


 


“Company” shall have the
meaning set forth in the preamble hereto.


 


“Consolidated Capital
Expenditures” shall mean, for any period, to the extent capitalized, the sum of
all expenditures by the Company and its Subsidiaries on a consolidated basis,
in respect of the purchase or acquisition of any fixed or capital assets,
including, without limitation, obligations under Capital Leases, determined in
accordance with Generally Accepted Accounting Principles applied on a
consistent basis.


 


“Consolidated Current
Liabilities” shall mean, on the date of determination, all liabilities of the
Company and its Subsidiaries, which would be classified as current liabilities
on a consolidated balance sheet of the Company and its Subsidiaries, as
determined in accordance with Generally Accepted Accounting Principles applied
on a consistent basis, provided that there shall be excluded from the calculation
of current liabilities, 80% of “Deferred Gross Profit arising from SAB 104” as
reflected on the most recent consolidated balance sheet of the Company and its
Subsidiaries delivered to the Lenders pursuant to the terms of this Agreement.


 


“Consolidated EBITA” shall
mean, for the Company and its Subsidiaries for any period, Consolidated EBITDA
for such period minus depreciation expenses for such period, determined
in accordance with Generally Accepted Accounting Principles applied on a
consistent basis. All of the foregoing categories shall be calculated with
respect to the Company and its Subsidiaries on a consolidated basis and shall
be calculated (without duplication) over the four fiscal quarters ending on or
most recently ended prior to the date of calculation thereof. Notwithstanding
anything to the contrary herein, for purposes of determining compliance with
the financial covenants set forth herein and in determining whether an
acquisition shall be a Permitted Acquisition only,
but not for purposes of calculating the Applicable Rate, Consolidated EBITA
shall include the EBITA of any entity acquired in a Permitted Acquisition,
which shall be calculated on a pro  forma basis with respect to
periods prior to consummation of such Permitted Acquisition.


 


“Consolidated EBITDA” shall
mean, for any Person for any period, the Consolidated Net Income (Net Loss) of
such Person and its Subsidiaries for such period before provision for federal
and state income taxes, minus the sum of (x) Consolidated Interest
Income and (y) all extraordinary gains, plus the sum, without
duplication, of (a) one-time non-cash charges related to (i) write-downs of
intangible assets (including the value of in-process research and development
related to a Permitted Acquisition) and (ii) to the extent included in
Consolidated Net Income before provision for federal and state income
taxes, write-downs of, or reserves for, deferred tax assets, (b) Consolidated
Interest Expense, (c) depreciation and amortization expenses, (d) non-cash non-recurring
charges incurred in connection with accounting for stock-based compensation
expense and changes to Statements of Financial Accounting Standards, all
determined in accordance with Generally Accepted Accounting Principles applied
on a consistent basis. All of the foregoing categories shall be calculated with
respect to such Person and its Subsidiaries on a consolidated basis and shall
be calculated (without duplication) over the four fiscal quarters ending on or
most recently ended prior to the date of calculation thereof. Notwithstanding
anything to the contrary herein, all gains associated with repurchases by the
Company of the outstanding Subordinated Notes shall be deemed extraordinary
gains for purposes of the calculation of Consolidated EBITDA.


 


“Consolidated EBITDAR” shall
mean, for the Company and its Subsidiaries for any period, 


 


H-5

















 


Consolidated EBITDA plus rent expense,
determined in accordance with Generally Accepted Accounting Principles applied
on a consistent basis. All of the foregoing categories shall be calculated with
respect to the Company and its Subsidiaries on a consolidated basis and shall
be calculated (without duplication) over the four fiscal quarters ending on or
most recently ended prior to the date of calculation thereof.


 


“Consolidated Fixed Charge
Coverage Ratio” shall mean, the ratio of (a) the sum of (i) Consolidated
EBITDAR minus (ii) Consolidated Net Unfunded Capital Expenditures during
the four fiscal quarters ending on or most recently ended prior to the date of
determination, minus (iii) income taxes paid to any government or
governmental instrumentality by the Company or any of its Subsidiaries during
the four fiscal quarters ending on or most recently ended prior to the date of
determination to (b) the sum of (i) Consolidated Interest Expense plus
(ii) rent expense for the four fiscal quarters ending on or most recently ended
prior to the date of determination, plus (iii) the aggregate amount of
all scheduled payments due during the next succeeding four fiscal quarters on
Indebtedness for borrowed money, including, without limitation, Subordinated
Debt, provided that Subordinated Debt shall be calculated net of
Domestic Cash and Marketables, but only if the result is a positive number, minus
(iv) an amount equal to 80% of all Revolving Credit Loans and Swingline Loans
at such time due to be repaid during the next succeeding four (4) fiscal
quarters.


 


“Consolidated Interest
Expense” shall mean for any Person, on the date of determination, the sum of
all interest expense on Indebtedness of such Person and its Subsidiaries, on a
consolidated basis, during the four fiscal quarters ending on or most recently
ended prior to the date of calculation thereof, as determined in accordance
with Generally Accepted Accounting Principles applied on a consistent basis,
provided that, the calculation of Consolidated Interest Expense shall include
Consolidated Interest Income for all fiscal periods through September 30, 2007
but not thereafter.


 


“Consolidated Interest
Income” shall mean for any Person, on the date of determination, the sum of all
interest income of such Person and its Subsidiaries, on a consolidated basis,
during the four fiscal quarters ending on or most recently ended prior to the
date of calculation thereof, determined in accordance with Generally Accepted
Accounting Principles applied on a consistent basis.


 


“Consolidated Net Income
(Net Loss)” shall mean for any Person, for any period, the net income (or net
loss) of such Person and its Subsidiaries on a consolidated basis for such
period determined in accordance with Generally Accepted Accounting Principles
applied on a consistent basis.


 


“Consolidated Net Unfunded
Capital Expenditures” shall mean, for the Company and its Subsidiaries,
Consolidated Unfunded Capital Expenditures less the net proceeds, not in
excess of $5,000,000, from the sale of fixed or capital assets realized by the
Company and its Subsidiaries on a consolidated basis during the preceding four
fiscal quarters.


 


“Consolidated Quick Assets”
shall mean, on the date of determination, the sum of all cash, Marketable
Securities and accounts receivable of the Company and its Subsidiaries,
including, without limitation, Domestic Cash and Marketables, which have not
been assigned, transferred, restricted, sold or are subject to any Lien, except
Liens in favor of the Administrative Agent for the benefit of the Lenders in
accordance with this Agreement, all as calculated on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
consistent ‘basis.


 


“Consolidated Quick Ratio”
shall mean, on the date of determination, the ratio of (a) Consolidated Quick
Assets to (b) the sum, without duplication, of (i) Consolidated Current Liabilities,
and (ii) 75% of the Aggregate Outstandings. In addition, for purposes of
calculating the Consolidated 


 


H-6

















 


Quick Ratio, if, as of the date of
determination, Consolidated EBITA on a rolling four-quarters basis is less than
$20,000,000, then accounts receivable of the Company and its Subsidiaries on a
consolidated basis shall be excluded from Consolidated Quick Assets to the
extent such accounts receivable exceed 50% of Consolidated Quick Assets.


 


“Consolidated Senior Funded
Debt” shall mean, on the date of determination, the sum of all Indebtedness for
borrowed money of the Company and its Subsidiaries (including, without
limitation, the current portion of Subordinated Indebtedness net of Domestic
Cash and Marketables, if a positive number), determined on a consolidated basis
and including the current portion thereof and the Aggregate Letters of Credit
Outstanding, but excluding the long term portion of the Existing Mortgage Debt
and the long-term portion of Subordinated Indebtedness, all as determined in
accordance with Generally Accepted Accounting Principles applied on a
consistent basis.


 


“Consolidated Total Assets”
shall mean, at any time, the total assets of the Company and its Subsidiaries,
as would be set forth or reflected on a consolidated balance sheet of the
Company and its Subsidiaries, prepared in accordance with Generally Accepted
Accounting Principles applied on a consistent basis.


 


“Consolidated Total Revenues”
shall mean, at any time, the total revenues of the Company and its
Subsidiaries, as would be set forth or reflected on a consolidated balance
sheet of the Company and its Subsidiaries, prepared in accordance with
Generally Accepted Accounting Principles applied on a consistent basis.


 


“Consolidated Unfunded
Capital Expenditures” shall mean those Consolidated Capital Expenditures of the
Company and its Subsidiaries not funded by Indebtedness; provided that, for
purposes of this definition only, “Indebtedness” shall not include Indebtedness
arising under this Agreement.


 


“Default” shall mean any
condition or event which upon notice, lapse of time or both would constitute an
Event of Default.


 


“Determination Date” shall
have the meaning specified in Section 4.03 hereof.


 


“Dollar” and the symbol “$”
shall mean lawful currency of the United States of America.


 


“Dollar Equivalent Amount”
shall mean, (a) in relation to any amount denominated in Dollars, the amount
thereof at such time, and (b) in relation to any amount denominated in any
Applicable Currency other than Dollars, the amount in Dollars which such amount
would equal when converted at the Exchange Rate then in effect.


 


“Domestic Cash and
Marketables” shall mean the aggregate Dollar value of any cash, cash
equivalents and Marketable Securities of the Company and its Domestic
Subsidiaries maintained at, or held by, any financial institution located in
the United States of America.


 


“Domestic Subsidiary” shall
mean any Subsidiary of the Company organized under the laws of any state of the
United States of America.


 


“Eligible Investments” shall
mean (a) direct obligations of the United States of America or any governmental
agency thereof which are fully guaranteed or insured by the United States of
America; 


 


H-7

















 


(b) Dollar denominated certificates of time
deposit issued by any bank organized and existing under the laws of the United
States or any state thereof and having aggregate capital and surplus in excess
of $500,000,000 or by any Lender; (c) money market mutual funds having assets
in excess of $2,000,000,000; (d) money market mutual funds having assets in
excess of $500,000,000 managed by a Lender or an Affiliate of a Lender; (e)
commercial paper rated not less than P-1 or A-1 or their equivalent by Moody’s
Investors Service, Inc. or Standard & Poor’s Ratings Group, respectively;
(f) tax exempt securities of a U.S. issuer rated A or better by Standard &
Poor’s Ratings Group or rated A-2 or better by Moody’s Investors Service, Inc.;
(g) cash, including, without limitation, Domestic Cash and Marketables; (h)
asset-backed securities, mortgage-backed securities and auction-rate securities
rated AAA (or its equivalent) by Standard & Poor’s Ratings Group or Moody’s
Investors Service, Inc.; (i) bonds issued by corporations organized under the
laws of any state of the United States rated A (or its equivalent) or better by
Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; and (j)
short-term investments by any Non-Domestic Subsidiary made in the ordinary
course of its business and in accordance with the Company’s guidelines and
procedures provided that the aggregate amount of such investments by the
Non-Domestic Subsidiaries shall not exceed the lesser of (1) $25,000,000 or (2)
fifty percent (50%) of the aggregate amount of Eligible Investments.


 


 “EMU Legislation” shall mean legislative
measures of the European Council for the introduction of, changeover to or
operation of a single or unified European currency.


 


“Environmental Law” shall
mean any applicable law, ordinance, rule, regulation, or policy having the
force of law of any Governmental Authority relating to pollution or protection
of the environment or to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et  seq.),
the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections
1801, et  seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901, et  seq.) and the rules and
regulations promulgated pursuant thereto.


 


“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended from time to time.


 


“ERISA Affiliate” shall mean
each person (as defined in Section 3(9) of ERISA) which together with the
Company or any Affiliate of the Company would be deemed to be a member of the
same “controlled group” within the meaning of Section 414(b), (c), (m) or (o)
of the Code.


 


“Euro” shall mean the single
currency of Participating Member States.


 


“Eurocurrency Base Rate”
shall mean, for any Interest Period with respect to a Eurocurrency Loan, the
rate of interest determined by the Administrative Agent as the rate for
deposits in the Applicable Currency for a period equal to such Interest Period
which appears on Telerate Page 3740 or 3750 as of 11:00 a.m. (London time) on
the day which is two Business Days prior to the commencement of such Interest
Period. (For purposes hereof, “Telerate Page 3740 or 3750” means the display
designated as “3740” or “3750” by Bridge Information Systems, Inc. (formerly
known as Dow Jones Market Service) or any replacement page thereof.)  If the Administrative Agent is unable to
obtain any quotation as provided above, the Eurocurrency Base Rate shall be the
rate of interest per annum determined by the Administrative Agent to be the
rate at which deposits in the Applicable Currency in the approximate amount of
the amount of the Eurocurrency Loan to be made or continued as, or converted
into, a Eurocurrency Loan and having a maturity comparable to such Interest
Period would be offered by four


 


H-8

















 


major banks selected by the Administrative
Agent in the London interbank market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the commencement of such Interest
Period. The principal London office of each of the four major banks will be
requested to provide a quotation of its Applicable Currency deposit offered
rate. If at least two such quotations are provided, the Eurocurrency Base Rate
for that date will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, it will be deemed that the Eurocurrency
Base Rate cannot be determined.


 


“Eurocurrency Loans” shall
mean Loans at such time as they are made and/or being maintained at a rate of
interest based upon Reserve Adjusted Eurocurrency Rate.


 


“Eurocurrency Reserve
Requirement” shall mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate (without duplication) of the rates (expressed as a decimal) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves, under any regulations of
the Board of Governors of the Federal Reserve System or any other governmental
authority having jurisdiction with respect thereto) as from time to time in
effect, dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “eurocurrency liabilities” in Regulation D)
maintained by any Lender.


 


“Eurocurrency Sublimit”
shall mean $25,000,000.


 


“Event of Default” shall
have the meaning set forth in Article VIII hereof.


 


“Exchange Rate” shall mean,
with respect to any currency (the “first currency”) on any date, the rate at
which such currency may be exchanged into another currency (the “second
currency”), as set forth on such date on the relevant Reuters currency page at
or about 11:00 a.m. London time on such date. In the event that such rate does
not appear on any Reuters currency page, the “Exchange Rate” shall be determined
by reference to such other publicly available service for displaying exchange
rates as may be agreed upon by the Administrative Agent and the Company or, in
the absence of such agreement, such “Exchange Rate” shall instead be the
Administrative Agent’s spot rate of exchange in the interbank market where its
foreign currency exchange operations in respect of such first currency are then
being conducted, at or about 10:00 a.m., local time, at such date for the
purchase of the second currency with such first currency, for delivery two
Business Days later provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error (without
prejudice to the determination of the reasonableness of such method).


 


“Existing Guarantors” shall
mean Veeco Compound Semiconductor Inc., Veeco Process Equipment Inc. (formerly
known as Veeco Ion Beam Equipment Inc., successor by merger to Veeco Slider
Process Equipment Inc.) and Veeco Metrology Inc. (formerly Veeco Tuscon Inc.
and successor-by-merger to Veeco Metrology, LLC).


 


“Existing Indebtedness”
shall mean all Indebtedness and other obligations of the Company arising
pursuant to the Prior Credit Agreement.


 


“Existing Mortgage Debt”
shall mean Indebtedness secured by real property, as described on Schedule
1.01(b) hereto.


 


H-9

















 


“Federal Funds Rate” shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
fund brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal fund
brokers of recognized standing selected by the Administrative Agent.


 


“First-Tier Subsidiary”
shall mean, with respect to any Person, a Subsidiary of such Person that is
directly owned by such Person.


 


“Foreign Pledge Agreements”
shall mean such pledge agreements or other documents, as may be required in
order to grant to the Administrative Agent (for the benefit of the Lenders) a
security interest in 65% of the issued and outstanding shares of stock or other
ownership interest of any Material Non-Domestic Subsidiary.


 


“Generally Accepted
Accounting Principles” shall mean those generally accepted accounting
principles in the United States of America, as in effect from time to time.


 


“Governmental Authority”
shall mean any nation or government, any state, province, city or municipal
entity or other political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency, department,
authority, instrumentality, commission, board or similar body, whether federal,
state, provincial, territorial, local or foreign.


 


“Guarantors” shall mean,
collectively, those Material Domestic Subsidiaries set forth on Schedule
1.01(a) hereto and each other Material Domestic Subsidiary which, from time to
time hereafter, is required to execute a Guaranty or an amendment thereto in
accordance with Section 6.12 hereof, provided such Subsidiary’s status as a
Guarantor shall be effective as of the date of such execution.


 


“Guaranty” shall mean the
Guaranty, dated as of the Prior Closing Date, by the Existing Guarantors in
favor of the Administrative Agent and the Lenders, as reaffirmed and amended as
of the Closing Date to, among other things, add the New Guarantors as
guarantors thereunder, as such Guaranty may be further amended to add any
Material Domestic Subsidiary required to become a guarantor thereunder pursuant
to Section 6.12 hereof or to release any Guarantor which subsequently becomes a
Non-Material Subsidiary, as such Guaranty may hereafter be amended, restated,
supplemented or otherwise modified from time to time.


 


“Hazardous Materials” shall
mean any explosives, radioactive materials, or other materials, wastes,
substances, or chemicals regulated as toxic or hazardous or as a pollutant,
contaminant or waste under any applicable Environmental Law.


 


“Hedging Agreement” shall
mean any interest rate swap, collar, cap, floor, option or forward rate
agreement or other agreement regarding the hedging of interest rate risk
exposure executed in connection with hedging the interest rate exposure of the
Company and any confirming letter executed pursuant to such agreement, all as
amended, supplemented, restated or otherwise modified from time to time.


 


“Indebtedness” shall mean,
without duplication, as to any Person, (a) indebtedness for borrowed money; (b)
indebtedness for the deferred purchase price of property or services; (c)
indebtedness evidenced by bonds, debentures, notes or other similar
instruments; (d) obligations and liabilities secured 


 


H-10

















 


by a Lien upon property owned by such Person,
whether or not owing by such Person and even though such Person has not assumed
or become liable for the payment thereof; (e) obligations or liabilities
created or arising under any conditional sales contract or other title retention
agreement with respect to property used and/or acquired by such Person; (f) the
capitalized portion of obligations of such Person as lessee under Capital
Leases; (g) net liabilities of such Person under Hedging Agreements and foreign
currency exchange agreements, as calculated in accordance with accepted
practice; (h) all obligations, contingent or otherwise of such Person as an
account party or applicant in respect of letters of credit created for the
account or upon the application of such Person; and (i) obligations and
liabilities of the types described in clause (a) through (h) above, directly or
indirectly, guaranteed by such Person.


 


“Indentures” shall mean,
collectively, the Indenture, dated December 21, 2001 and the First Supplemental
Indenture dated April 20, 2007, in each case by and between the Company and the
trustee named therein providing for issuance of the Subordinated Notes.


 


“Interest Payment Date”
shall mean (a) as to any Prime Rate Loan, the last day of each calendar month
during the term hereof and the date on which such Prime Rate Loan is converted
to a Eurocurrency Loan; (b) as to any Eurocurrency Loan, the last day of the
Interest Period applicable thereto and, if such Interest Period exceeds three
months, the date that falls three months after the beginning of such Interest
Period; and (c) as to any Loan, the date such Loan is paid in full or in part,
to the extent of such payment.


 


“Interest Period” shall mean
with respect to any Eurocurrency Loan:


 


(a)           initially, the period commencing on the date such
Eurocurrency Loan is made and ending one, two, three or six months thereafter,
as selected by the Company in its notice of borrowing or in its notice of
conversion from a Prime Rate Loan, in each case in accordance with the terms of
Articles II and III hereof; and


 


(b)           thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the Company by irrevocable
written notice to the Administrative Agent not later than the Applicable
Offshore Time, four Business Days prior to the last day of the then current
Interest Period with respect to a Eurocurrency Loan which is denominated in an
Approved Currency other than Dollars, or 11:00 a.m. (New York, New York time)
three Business Days prior to the last day of the then current Interest Period
with respect to a Eurocurrency Loan which is denominated in Dollars, and the
Administrative Agent shall promptly notify each of the Lenders of such notice;
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:


 


(i)            if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;


 


(ii)           if the Company shall fail to give notice as provided in
clause (b) above, the Company shall be deemed to have requested conversion of
the affected Eurocurrency Loan to a Prime Rate Loan on the last day of the then
current Interest Period with respect thereto;


 


(iii)          any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and


 


H-11

















 


(iv)          no more than ten (10) Interest Periods
may exist at any one time.


 


“Issuing Lender” shall mean
the Person which is the Administrative Agent, in its capacity as the issuer of
Letters of Credit hereunder or its successor Issuing Lender permitted pursuant
to Section 2.03(e) hereof. The Issuing Lender may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Lender, in which case the term “Issuing Lenders” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“Lead Arranger” shall mean
HSBC Bank USA, National Association.


 


“Lenders” shall have the
meaning set forth in the preamble hereto and shall include the Swingline Lender
and the Issuing Lender.


 


“Lending Office” shall mean,
for each Lender, the office specified under such Lender’s name on the signature
pages hereof with respect to each Type of Loan, or such other office as such
Lender may designate in writing from time to time to the Company and the
Administrative Agent with respect to such Type of Loan.


 


“Letter of Credit” shall
mean any commercial or standby letter of credit issued by the Issuing Lender
for the account of the Company pursuant to the terms of this Agreement.


 


“Letter of Credit Agreement”
shall mean the Issuing Lender’s applicable form of Application for Letter of
Credit, as in effect at the time that a request is made for a Letter of Credit.
If there are any conflicts between the provisions of any Letter of Credit
Agreement and this Agreement, the provisions of this Agreement shall govern.


 


“Lien” shall mean any
mortgage, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title  retention agreement, any Capital Lease and
any financing lease having substantially the same economic effect as any of the
foregoing).


 


“Loans” shall mean,
collectively, the Revolving Credit Loans and the Swingline Loans.


 


“Loan Documents” shall mean,
collectively, this Agreement, the Notes, the Guaranties, the Security
Agreement, the Hedging Agreements (but only to the extent that such Hedging
Agreements are between the Company and a Lender and relate to the Company’s
hedging of interest rate exposure under this Agreement), the Pledge Agreements,
and each other agreement executed in connection with the transactions
contemplated hereby or thereby, as each of the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time.


 


“Marketable Securities”
shall mean those securities described in the definition of “Eligible Investments”,
that are classified as current assets, as would be set forth or reflected on a
consolidated balance sheet of the Company and its Subsidiaries, prepared in
accordance with Generally Accepted Accounting Principles applied on a
consistent basis, provided that, for purposes of determining Consolidated Quick
Assets, those securities described in clause (j) of the definition of “Eligible
Investments” shall not exceed 20% of the aggregate amount of Marketable
Securities, at any time.


 


H-12

















 


“Material Adverse Effect”
shall mean a material adverse effect upon (a) the business, operations,
property or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole or (b) the ability of the Company or any
Guarantor to perform in any material respect any obligations under any Loan
Document to which it is a party.


 


“Material Domestic
Subsidiary” shall mean a Material Subsidiary which is a Domestic Subsidiary.


 


“Material Non-Domestic
Subsidiary” shall mean a Material Subsidiary which is a Non-Domestic
Subsidiary.


 


“Material Subsidiary” shall
mean any (a) Domestic Subsidiary of the Company which has assets constituting
at least five percent (5%) of Consolidated Total Assets or has revenues
consisting of at least five percent (5%) of Consolidated Total Revenues, or (b)
Non-Domestic Subsidiary of the Company which has assets constituting at least
ten percent (10%) of Consolidated Total Assets or has revenues consisting of at
least ten percent (10%) of Consolidated Total Revenues, each as reflected on
the most recent financial statements delivered pursuant to Section 6.03(a) or
(b) hereof.


 


“Multiemployer Plan” means
any Plan that is a “multiemployer plan” (as such term is defined in Section
4001(a)(3) of ERISA), which is covered by Title IV of ERISA.


 


“New Guarantors” shall mean
Veeco APAC Inc. and Veeco Corporate LLC.


 


“Non-Domestic Subsidiary”
shall mean any Subsidiary of the Company which is not a Domestic Subsidiary.


 


“Non-Material Domestic
Subsidiary” shall mean any Non-Material Subsidiary which is a Domestic
Subsidiary.


 


“Non-Material Subsidiary”
shall mean any Subsidiary of the Company which is not a Material Subsidiary.


 


“Non-Excluded Taxes” shall
have the meaning set forth in Section 3.10(a) hereof.


 


“Notes” shall mean,
collectively, the Revolving Credit Notes and the Swingline Note.


 


“Obligations” shall mean all
obligations, liabilities and indebtedness of the Company and any of its
Subsidiaries to the Lenders, the Issuing Lender and the Administrative Agent,
whether now existing or hereafter created, absolute or contingent, direct or
indirect, due or not, whether created directly or acquired by assignment or
otherwise, arising under this Agreement, the Notes or any other Loan Document
including, without limitation, all obligations, liabilities and indebtedness of
the Company with respect to the principal of and interest on the Loans
(including any interest that accrues after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization or like
proceeding relating to the Company, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), reimbursement of Letters
of Credit, obligations under any Hedging Agreement relating to the Indebtedness
of the Company arising under this Agreement, and all fees, costs, expenses and
indemnity obligations of the Company and any of its Subsidiaries hereunder or
under any other Loan Document (including all fees and expenses of the
Administrative Agent and any Lender incurred pursuant to this Agreement or any
other Loan Document).


 


H-13

















 


“Participant” shall have the
meaning set forth in Section 10.05(b) hereof.


 


“Participating Member States”
shall mean each country which from time to time becomes a Participating Member
State as described in EMU Legislation.


 


“Payment Office” shall mean
(a) in the case of payments in Dollars, the Administrative Agent’s office
located at 534 Broad Hollow Road, Melville, New York 11747 or such other office
as the Administrative Agent may designate from time to time in writing and (b)
in the case of payments in any Approved Currency other than Dollars, such
address as the Administrative Agent may, from time to time, specify.


 


“PBGC” shall mean the
Pension Benefit Guaranty Corporation established pursuant to Section 4002 of
ERISA, or any successor thereto.


 


“Permitted Acquisition”
shall mean any acquisition (whether by merger or otherwise) by the Company or
any Subsidiary of the Company of more than 50% of the outstanding capital
stock, membership interests, partnership interests or other similar ownership
interests of a Person which is engaged in a line of business similar to the
business (or reasonable extensions thereof) of the Company or such Subsidiary
or the purchase of all or substantially all of the assets owned by such Person
or the purchase of a division, business unit or product line of a Person;
provided (a) the Administrative Agent shall have received, within ten (10)
Business Days of the closing of such Permitted Acquisition, (i) with respect to
a Person which constitutes a Material Domestic Subsidiary, to the extent not
previously received, duly executed amendments with respect to the Guaranty and
the Security Agreement, pursuant to which such Subsidiary becomes a “Guarantor”
and “Grantor” under the Guaranty and the Security Agreement, respectively, and
(ii) with respect to a Person which constitutes a Material Non-Domestic
Subsidiary, to the extent not previously received, a duly executed Pledge
Agreement by the parent of such Material Non-Domestic Subsidiary, to the extent
such documents are required to be delivered pursuant to Section 6.12 hereof;
(b) the Administrative Agent shall have received evidence reasonably
satisfactory to it that the shares or other interests in the Person, or the
assets of the Person, which is the subject of the Permitted Acquisition are, or
will be promptly following the closing of such Permitted Acquisition, free and
clear of all Liens, except Permitted Liens, including, without limitation, with
respect to the acquisition of shares or other equity interests, free of any
restrictions on transfer other than restrictions applicable to the sale of
securities under federal and state securities laws and regulations generally;
(c) the Administrative Agent shall have received (i) within ten (10) Business
Days following the closing of such Permitted Acquisition, if the Permitted
Acquisition Purchase Price is less than $15,000,000, and (ii) not less than
five (5) Business Days preceding the closing of such Permitted Acquisition, if
the Permitted Acquisition Purchase Price is greater than or equal to
$15,000,000, the documentation governing the proposed acquisition, including,
without limitation, the purchase agreement with respect thereto, together with
such other additional documentation or information with respect to the proposed
acquisition as the Administrative Agent may reasonably require; (d) no Default
or Event of Default shall have occurred and be continuing immediately prior to
or would occur after giving effect to the acquisition on a pro  forma
basis and the Administrative Agent shall have received projections and pro
forma financial statements showing that no Default or Event of Default shall
have occurred after giving effect to such acquisition; (e) the acquisition has
either (i) been approved by the Board of Directors or other governing body of
the Person which is the subject of the acquisition or (ii) been recommended for
approval by the Board of Directors or other governing body of such Person to
the shareholders or other members of such Person and subsequently approved by
the shareholders or such members if shareholder or such member approval is
required under applicable law or the by-laws, certificate of incorporation or
other governing 


 


H-14

















 


instruments of such Person; (f) prior to the
closing of any such acquisition, the Company shall have delivered evidence to
the Administrative Agent (with sufficient copies for each of the Lenders)  that, on a pro  forma basis, (i)
the Company will be in compliance with the financial condition covenants of
Section 7.13 hereof upon completion of such acquisition and (ii) the ratio of
Consolidated Senior Funded Debt to Consolidated EBITA will not exceed 3.00:1.00
upon completion of such acquisition; (g) in the case of an acquisition of a
Non-Domestic Subsidiary, the business to be acquired shall be acquired by the
Company, a Guarantor or a Material Non-Domestic Subsidiary; (h) the aggregate
Permitted Acquisition Purchase Price (excluding consideration consisting of the
Company’s common stock) paid in connection with all Permitted Acquisitions,
collectively, during each rolling twelve (12) month period shall not exceed an
amount equal to the product of three (3) times Consolidated EBITA for the
trailing four fiscal quarters, provided, that, the Permitted
Acquisition Purchase Price for any single Permitted Acquisition shall not
exceed $20,000,000 if the business which is the subject of such Permitted
Acquisition has a negative Consolidated EBITDA or if Consolidated EBITDA cannot
be reasonably determined by the Company or such Person; and (i) the Company and
its Subsidiaries shall not close more than four (4) Permitted Acquisitions in
any rolling twelve (12) month period.


 


“Permitted Acquisition
Purchase Price” shall mean, with respect to any Permitted Acquisition,
collectively, without duplication, (a) all cash paid by the Company or any of
its Subsidiaries in connection with such Permitted Acquisition, including
transaction costs, fees and other expenses incurred by the Company or such
Subsidiary in connection with such Permitted Acquisition, (b) all Indebtedness
created, and all Indebtedness assumed, by the Company or any of its
Subsidiaries in connection with such Permitted Acquisition, including, without
limitation, the maximum amount of any purchase price to be paid pursuant to any
“earn out” provision contained in the applicable purchase agreements related to
such Permitted Acquisition, (c) the value of all capital stock issued by the
Company or any of its Subsidiaries in connection with such Permitted
Acquisition, and (d) the deferred portion of the purchase price or any other
costs paid by the Company or any of its Subsidiaries in connection with such
Permitted Acquisition, including, but not limited to, consulting agreements and
non-compete agreements. For purposes of this definition, if any “earn out”
provision in any purchase agreement for any Permitted Acquisition does not
provide for a maximum payment, the amount to be calculated pursuant to
subsection (b) of this definition with respect to the maximum amount of any
purchase price to be paid pursuant to any “earn out” provision, shall be
determined by the Administrative Agent, on a reasonable basis, on the basis of
the projections provided to the Administrative Agent.


 


“Permitted Equity Investment”
shall mean any acquisition (other than a Permitted Acquisition) by the Company
or any Subsidiary of the Company of the capital stock, membership interests,
partnership interests or other similar interests of a Person, including any
investment in a joint venture, provided that such acquisition does not result
in the Company or such Subsidiary having the right to vote a majority of the
outstanding capital stock or other ownership interests of such Person.


 


“Permitted Equity Investment
Costs” shall mean, as of any date of determination, the aggregate amount of
cash and other property invested by the Company or any Subsidiary in a Person,
and/or loans made by the Company or any Subsidiary to such Person, in
connection with all Permitted Equity Investments; provided, however, that the
value of any property so invested by the Company or any Subsidiary shall be
equal to the fair market value of such property as of the date of such
investment and such value shall not be adjusted to give effect to the loss in
value of any Permitted Equity Investment.


 


“Permitted Liens” shall mean
the Liens specified in clauses (a) through (o) of Section 7.02 hereof.


 


H-15

















 


“Person” shall mean any
natural person, corporation, limited liability company, limited liability
partnership, business trust, joint venture, association, company, partnership,
unincorporated trade or business enterprise or Governmental Authority.


 


“Plan” shall mean any
Multiemployer Plan or Single-Employer Plan, defined in and subject to Section
4001 of ERISA, which covers, or at any time during the five calendar years
preceding the date of this Agreement covered, employees of the Company, any
Guarantor or an ERISA Affiliate on account of such employees’ employment by the
Company, any Guarantor or an ERISA Affiliate, provided that such term shall not
include any Plan terminated prior to the date hereof and with respect to which
the Company, such Guarantor or such ERISA Affiliate could not incur any
material liability with respect thereto.


 


“Pledge Agreements” shall
mean, collectively, (a) the Pledge Agreement, dated as of the Prior Closing
Date, between the Company and the Administrative Agent, as amended and
reaffirmed as of the Closing Date, (b) the Pledge Agreement, dated as of the
Closing Date, between Veeco Metrology and the Administrative Agent, (c) with
respect to the Company, the Pledge Agreement in the form attached hereto as Exhibit E-1, to be executed and delivered by the Company,
from time to time, as required pursuant to Section 6.12 hereof, (d) with
respect to any Domestic Subsidiary, as applicable, the Pledge Agreement in the
form attached hereto as Exhibit E-2, to
be executed and delivered by any Domestic Subsidiary which is the direct holder
of capital stock of any Material Non-Domestic Subsidiary, who is required to
execute the same pursuant to Section 6.12 hereof, and (e) the Foreign Pledge
Agreements, as each of the same may hereafter be amended, restated,
supplemented or otherwise modified, from time to time.


 


“Prime Rate” shall mean the
rate per annum announced by the Person which is the Administrative Agent from
time to time as its prime rate in effect at its principal office, each change
in the Prime Rate shall be effective on the date such change is announced to
become effective without notice or demand of any kind. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
charged by the Person which is the Administrative Agent to any customer.


 


“Prime Rate Loan” shall mean
Loans at such time as they are being made and/or maintained at a rate of
interest based upon the Prime Rate.


 


“Prior Credit Agreement” has
the meaning set forth in the recitals hereto.


 


“Prior Closing Date” shall
mean March 15, 2005.


 


“Purchasing Lender” shall
have the meaning set forth in Section 10.05(c) hereof.


 


“Register” shall have the
meaning set forth in Section 10.05(d) hereof.


 


“Regulation D” shall mean
Regulation D of the Board of Governors of the Federal Reserve System as the
same may be amended or supplemented from time to time.


 


“Relevant Exchange Rate”
shall mean, with respect to any Eurocurrency Loan denominated in any Approved
Currency other than Dollars, the Exchange Rate for the purchase of Dollars with
such Approved Currency in effect on the date which is two Business Days prior
to the later of (a) the date on which such Loan was first made, or (b) the date
on which such Loan was continued, if applicable, pursuant to the terms of this
Agreement.


 


H-16
















 


“Reportable Event” shall
mean an event described in Section 4043(c) of ERISA with respect to a Plan as
to which the 30 day notice requirement has not been waived by the PBGC.


 


“Required Lenders” shall
mean Lenders owed at least 51% of the sum of the aggregate unpaid principal
amount of the Revolving Credit Loans or, if no Revolving Credit Loans are
outstanding, Lenders having at least 51% of the Total Commitment.


 


“Reserve Adjusted
Eurocurrency Rate” shall mean, with respect to the Interest Period for each
Eurocurrency Loan, the rate per annum (rounded upwards to the next higher
1/16th of one percent) equal to the following:


 


Eurocurrency
Base Rate


1.00
- Eurocurrency Reserve Requirement


 


“Revolving Credit Commitment”
shall mean, with respect to each Lender at any time, the obligation of such
Lender to make Revolving Credit Loans to the Company and to acquire
participations in Letters of Credit in an aggregate amount not to exceed (i)
with respect to a Lender party to this Agreement on the Closing Date, the amount
set forth opposite such Lender’s name on the signature pages hereof under the
caption Revolving Credit Commitment, as such amounts may be reduced or
increased in accordance with the terms of this Agreement or in any Assignment
and Acceptance Agreement executed by such Lender or, (ii) with respect to an
Additional Lender, in an aggregate amount not to exceed the amount set forth in
the Assignment and Acceptance Agreement pursuant to which such Additional
Lender became a Lender, in each case, as such amounts may be reduced or
increased in accordance with any Assignment and Acceptance Agreement executed
by such Additional Lender.


 


“Revolving Credit Commitment
Period” shall mean the period from and including the Closing Date to, but not
including, the Revolving Credit Commitment Termination Date or such earlier
date as the Revolving Credit Commitments shall terminate as provided herein.


 


“Revolving Credit Commitment
Termination Date” shall mean March 31, 2012.


 


“Revolving Credit Loans”
shall have the meaning set forth in Section 2.01(a) hereof.


 


“Revolving Credit Notes”
shall have the meaning set forth in Section 2.02 hereof.


 


“Security Agreement” shall
mean the Security Agreement, dated as of the Prior Closing Date, among the
Company, the Existing Guarantors and the Administrative Agent, as reaffirmed
and amended as of the Closing Date, to, among other things, add the New
Guarantors as grantors thereunder, as such Security Agreement may be further
amended to add any Material Domestic Subsidiary required to become a grantor
thereunder pursuant to Section 6.12 hereof, as the same may hereafter be
further amended, restated, supplemented or otherwise modified from time to
time.


 


“Single-Employer Plan” shall
mean a Plan that is a “single-employer plan” (as such term is defined in
Section 4001(a)(15) of ERISA), which is covered by Title IV of ERISA.


 


“Solvent” shall mean with
respect to any Person as of the date of determination thereof that (a) the
amount of the “present fair saleable value” of the assets of such Person will,
as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise,” as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations
of the


 


H-17

















 


insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and
(d) such Person will be able to pay its debts as they mature, in each case
after giving effect to any right of indemnification and contribution of such
Person from or to any Affiliate.


 


“Standby LC Disbursement”
shall mean a payment made by the Issuing Lender pursuant to a Standby Letter of
Credit.


 


“Standby LC Exposure” shall
mean, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Standby Letters of Credit at such time, and (b) the aggregate
amount of all Standby LC Disbursements that have not yet been reimbursed by or
on behalf of the Company at such time.


 


“Standby LC Margin” shall
mean the percentage indicated as the “Eurocurrency Margin” with respect to
Eurocurrency Loans as set forth and determined in accordance with the
definition of “Applicable Rate”.


 


“Standby Letter of Credit”
shall mean any letter of credit issued to support an obligation of a Person and
which may be drawn on only upon the failure of such Person to perform such
obligation or other contingency.


 


“Subordinated Debt” or “Subordinated
Indebtedness” shall mean all debt which is subordinated in right of payment to
the prior final payment in full of the obligations of the Company and/or of its
Subsidiaries to the Lenders hereunder and under any other Loan Document on
subordination terms satisfactory to and approved in writing by the Required
Lenders (not to be unreasonably withheld or delayed).


 


“Subordinated Notes” shall
mean up to $145,000,000 of 4-1/8% Convertible Subordinated Notes due 2008
and/or 4-1/8% Convertible Subordinated Notes due 2012, collectively, each
issued by the Company as described in the Indentures.


 


“Subsidiary” shall mean,
with respect to any Person, any corporation, association or other business
entity 50% or more of the voting stock or other ownership interests (including,
without limitation, membership interests in a limited liability company) of
which is, at the time, owned or controlled, directly or indirectly, by such
Person or one or more of its Subsidiaries or a combination thereof.


 


“Swingline Commitment” shall
mean the obligation of the Swingline Lender to make Swingline Loans to the
Company in an aggregate amount not to exceed $5,000,000 at any time
outstanding.


 


“Swingline Lender” shall
mean the Person which is the Administrative Agent, in its capacity as lender of
Swingline Loans.


 


“Swingline Loan” shall have
the meaning set forth in Section 2.04(a) hereof.


 


“Swingline Note” shall have
the meaning set forth in Section 2.04(e) hereof.


 


“Total Commitment” shall
mean, at any time, the aggregate of the Revolving Credit Commitments in effect
at such time which shall be $100,000,000.


 


H-18

















 


“TurboDisc Investigation”
shall mean the investigation by the Company, its counsel and other agents, into
improper accounting procedures at its TurboDisc business unit.


 


“Type” shall mean as to any
Loan its status as a Prime Rate Loan or a Eurocurrency Loan.


 


“UCP” shall mean the
International Chamber of Commerce Uniform Customs and Practice for Documentary
Credits, 1993 Revision, ICC Publication No. 500 or any successor publication
thereof.


 


“Unfunded Current Liability”
of any Plan shall mean the amount, if any, by which the present value of the
accrued benefits under such Plan as of the close of its most recent plan year
exceeds the fair market value of the assets allocable thereto, determined in
accordance with Section 412 of the Code.


 


“Unused Fee” shall have the
meaning specified in Section 3.04(a) hereof.


 


SECTION 1.02.          Terms Generally.  The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
feminine and the neuter. Except as otherwise herein specifically provided, each
accounting term used herein shall have the meaning given to it under Generally Accepted
Accounting Principles. The term “including” shall not be limited or exclusive,
unless specifically indicated to the contrary. The word “will” shall be
construed to have the same meaning in effect as the word “shall”. The words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this
Agreement as a whole, including the exhibits and schedules hereto and any
amendments thereof, all of which are by this reference incorporated into this
Agreement.


 


SECTION 1.03.          Currency Equivalents
Generally.  Except to the extent expressly provided otherwise herein (including for
purposes of any denomination of any Eurocurrency Loan not denominated in
Dollars into a Loan in Dollars but not for purposes of the preparation of any
financial statements delivered pursuant hereto or any exchange rate
determinations expressly required to be done using a different method), the
equivalent in any Approved Currency (or any other currency) of an amount in
Dollars, and the equivalent in Dollars of any amount in any Approved Currency
(or any other currency), shall be determined at the Exchange Rate.


 


ARTICLE II

LOANS


 


SECTION 2.01.          Revolving Credit Loans.


 


(a)           Subject to the terms and conditions, and
relying upon the representations and warranties, set forth herein, each Lender
severally agrees to make loans (individually a “Revolving Credit Loan” and,
collectively, the “Revolving Credit Loans”) in Dollars or any other Approved
Currency to the Company from time to time during the Revolving Credit
Commitment Period up to, but not exceeding, at any one time outstanding the
aggregate Dollar Equivalent Amount of its Revolving Credit Commitment; provided,
however, that no Revolving Credit Loan shall be made if, after giving
effect to such Revolving Credit Loan, the Dollar Equivalent Amount of the
Aggregate Outstandings would exceed the Total Commitment or the Dollar
Equivalent Amount of all Eurocurrency Loans denominated in a currency other
than Dollars would exceed the Eurocurrency Sublimit. During the Revolving Credit
Commitment Period, the Company may from time to time borrow, repay and reborrow
Revolving Credit Loans on or after the date hereof and prior to the Revolving
Credit Commitment Termination Date, subject to the


 


H-19

















 


terms, provisions and limitations set forth herein. The Revolving
Credit Loans may be (i) Eurocurrency Loans, (ii) Prime Rate Loans or (iii) a
combination thereof, provided that all Loans in Approved Currencies
other than Dollars shall be Eurocurrency Loans.


 


(b)           The Company shall give the Administrative Agent irrevocable written
notice (or telephonic notice promptly confirmed in writing) not later than: (i)
the Applicable Offshore Time, four Business Days prior to the date of each
proposed Eurocurrency Loan under this Section 2.01 denominated in any Approved
Currency other than Dollars, (ii) 11:00 a.m. (New York, New York time) three
Business Days prior to the date of each proposed Eurocurrency Loan under this
Section 2.01 denominated in Dollars, or (iii) prior to 11:00 a.m. (New York,
New York  time) on the date of each
proposed Prime Rate Loan under this Section 2.01, provided that no Eurocurrency
Loan shall be made less than one month prior to the Revolving Credit Commitment
Termination Date. Such notice shall be irrevocable and shall specify (i) the
amount and Type of the proposed borrowing, (ii) the proposed Borrowing Date,
and (iii) if a Eurocurrency Loan, the initial Interest Period and the proposed
currency thereof which shall be an Approved Currency. Upon receipt of such
notice from the Company, the Administrative Agent shall promptly notify each
Lender of such request, and shall promptly thereafter, upon determination
thereof, notify each Lender of the amount of such Lenders’ Commitment Proportion
of such requested Loan and, if a Eurocurrency Loan denominated in an Approved
Currency other than Dollars, the Dollar Equivalent Amount thereof and the
applicable Exchange Rate used by the Administrative Agent to determine such
Dollar Equivalent Amount. Except for borrowings which utilize the full
remaining amount of the Total Commitment, each borrowing of a Prime Rate Loan
(other than a Swingline Loan) shall be in an amount not less than $1,000,000
or, if greater, whole multiples of $1,000,000 in excess thereof. Each borrowing
of a Eurocurrency Loan shall be in an amount not less than $2,000,000 (or the
Applicable Currency Equivalent thereof) or whole multiples of $1,000,000 (or
the Applicable Currency Equivalent thereof) in excess thereof. Funding of all
Revolving Credit Loans shall be made in accordance with Section 3.12 of this
Agreement.


 


(c)           The Company shall have the right, upon not less than five Business Days’
prior written notice to the Administrative Agent, to terminate the Total
Commitment or from time to time to permanently reduce the amount of the Total
Commitment; provided, however, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any payments of the Revolving
Credit Loans and the Swingline Loans made on the effective date thereof, the
Dollar Equivalent Amount of the Aggregate Outstandings would exceed the Total
Commitment as then reduced; provided, further, that any such termination or
reduction requiring prepayment of any Eurocurrency Loan shall be made only on
the last day of the Interest Period with respect thereto or on the date of
payment in full of all amounts owing pursuant to Section 3.08 hereof as a
result of such termination or reduction. The Administrative Agent shall
promptly notify each Lender of each notice from the Company to terminate or
permanently reduce the amount of the Total Commitment pursuant to this Section
2.01(c). Any such reduction shall be in the amount of $5,000,000 or whole
multiples of $1,000,000 in excess thereof, and shall reduce permanently the
amount of the Total Commitment then in effect. The Total Commitment, once
reduced or terminated, may not be reinstated except in the Lenders’ sole
discretion and subject to receipt of such credit approval and other authorizations
that the Lenders may require.


 


(d)           The several agreements of the Lenders to make Revolving Credit Loans
pursuant to this Section 2.01 shall automatically terminate on the Revolving
Credit Commitment Termination Date. Upon such termination, the Company shall
immediately repay in full the principal amount of the Revolving Credit Loans
then outstanding, together with all accrued interest thereon and all other
amounts due and payable hereunder.


 


H-20

















 


SECTION 2.02.          Revolving Credit Note.  The Revolving Credit Loans made by each Lender shall be evidenced by a
promissory note of the Company (individually a “Revolving Credit Note”
and, collectively, the “Revolving Credit Notes”), substantially in the
form attached hereto as Exhibit A,
each appropriately completed, duly executed and delivered on behalf of the
Company and payable to the order of such Lender in a principal amount equal to
the Revolving Credit Commitment of such Lender. Each Revolving Credit Note
shall (a) be dated the Closing Date, (b) be stated to mature on the Revolving
Credit Commitment Termination Date, and (c) bear interest from the date of the
first Revolving Credit Loan until paid in full on the unpaid principal amount
thereof from time to time outstanding as provided in Section 3.01 hereof. Each
Lender is authorized to record the date, Type and amount of each Revolving
Credit Loan, the Applicable Currency thereof, and the date and amount of each
payment or prepayment of principal of each Revolving Credit Loan in such Lender’s
records or on the grid schedule annexed to such Lender’s Revolving Credit Note;
provided, however, that the failure of a Lender to set forth each
such Revolving Credit Loan, payment and other information shall not in any
manner affect the obligation of the Company to repay each Revolving Credit Loan
made by such Lender in accordance with the terms of its Revolving Credit Note
and this Agreement. The Revolving Credit Note, the grid schedule and the books
and records of each Lender shall constitute presumptive evidence of the
information so recorded absent demonstrable error.


 


SECTION 2.03.          Letters of Credit.


 


(a)           Generally. Subject to the terms and conditions set
forth in this Agreement, upon the written request of the Company in accordance
herewith, the Issuing Lender shall issue Letters of Credit at any time during
the Revolving Credit Commitment Period with pro rata participation by all of
the Lenders in accordance with their respective Commitment Proportions. Notwithstanding
the foregoing, no Letter of Credit shall be issued if, after giving effect to
the same, the Dollar Equivalent Amount of the Aggregate Outstandings would
exceed the Total Commitment or Aggregate Letters of Credit Outstanding would
exceed $20,000,000. Furthermore, no Letter of Credit shall be issued without
the consent of the Required Lenders during the occurrence and continuance of an
Event of Default. Each request for issuance of a Letter of Credit shall be in
writing and shall be received by the Issuing Lender by no later than 12:00 noon
(New York, New York time) on the day which is at least two Business Days prior
to the proposed date of issuance. Such issuance shall occur by no later than
5:00 p.m. on the proposed date of issuance (assuming proper prior notice as
aforesaid). Subject to the terms and conditions contained herein, the expiry
date, the type of Letter of Credit (i.e., Commercial Letter of Credit or
Standby Letter of Credit) and the amount and beneficiary of the Letters of
Credit will be as designated by the Company. The Issuing Lender shall promptly
notify the Administrative Agent and the Lenders of the issuance of any Letter
of Credit and of the amounts of all Letters of Credit issued hereunder and of
any extension, reduction, termination or amendment of any Letter of Credit. Each
Letter of Credit issued by the Issuing Lender hereunder shall be denominated in
Dollars and shall identify: (i) the dates of issuance and expiry of such Letter
of Credit, (ii) the amount of such Letter of Credit (which shall be a sum
certain), (iii) the beneficiary of such Letter of Credit, and (iv) the drafts
and other documents necessary to be presented to the Issuing Lender upon
drawing thereunder. In no event shall any Letter of Credit expire (or by its
terms be required to be renewed to a date) after the Revolving Credit
Commitment Termination Date. The Issuing Lender will not issue a Letter of
Credit hereunder which expires after the earlier to occur of (1) one (1) year
from the date of issuance of such Letter of Credit  (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (2) the Revolving Credit
Commitment Termination Date. The Company agrees to execute and deliver to the
Issuing Lender such further documents and instruments in connection with any
Letter of Credit issued hereunder (including without limitation, applications
therefor) as the Issuing Lender in accordance with its customary practices may
reasonably request.


 


H-21

















 


(b)           Drawings Under Letters of
Credit. The Company hereby
absolutely and unconditionally promises to pay the Issuing Lender not later
than 2:00 p.m. (New York, New York time) the amount of each drawing under a
Letter of Credit if the Company receives notice of such drawing prior to 10:00
a.m. (New York, New York time) on the date of such drawing, or if such notice
has not been received by the Company prior to such time on such date, then not
later than 12:00 noon (New York, New York time) on the Business Day immediately
following the day that the Company receives such notice; provided, however, (i)
if any drawing was in an amount not less than $1,000,000, the Company may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.01 hereof that such payment be financed with a Revolving Credit
Loan which is a Prime Rate Loan  in an
equivalent amount, and, to the extent so financed, the Company’s obligation to
make such payment shall be discharged and replaced by such a Prime Rate Loan
and (ii) if such drawing or payment was in an amount  less than $1,000,000, the Company may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.04 hereof that such payment be financed with a Swingline Loan in
an equivalent amount and, to the extent so financed, the Company’s obligation
to make such payment shall be discharged and replaced by such Swingline Loan. Such
request shall be made by the Company on the date of receipt of notice from the
Issuing Lender of a drawing under a Letter of Credit as applicable. The Issuing
Lender shall notify the Administrative Agent and each Lender of such request in
accordance with Section 2.01 hereof. If the Company fails to make such payment
when due, the Issuing Lender shall notify each Lender of the amount of the
drawing under the applicable Letter of Credit. Each Lender agrees that on the
first Business Day after receipt of such notice, it will immediately make
available by no later than 12:00 noon (New York, New York time), to the Issuing
Lender at the Payment Office by payment in Dollars and in immediately available
funds, its Commitment Proportion of such drawing, provided (i) each Lender’s
obligation shall be reduced by its Commitment Proportion of any reimbursement
by the Company in respect of any such drawing pursuant to this Section 2.03 and
(ii) no Lender shall be required to make payments to the Issuing Lender with
respect to a drawing or payment which the Company reimbursed with the proceeds of
a Revolving Credit Loan, as contemplated above, if such Lender fully funded its
Commitment Proportion of such Revolving Credit Loan in accordance with Section
3.12 hereof. Any payment made by a Lender pursuant to this Section 2.03(b) to
reimburse the Issuing Lender for any drawing under a Letter of Credit (other
than a Prime Rate Loan or a Swingline Loan as contemplated above) shall not
constitute a Revolving Credit Loan or a Swingline Loan and shall not relieve
the Company of its obligation to reimburse the Issuing Lender for such drawing
or payment. Each drawing under a Letter of Credit which is not paid on the date
such drawing is made shall accrue interest, for each day from and including the
date of such drawing to but excluding the date that the Company reimburses the
Issuing Lender in full for such drawing at the rate per annum then applicable
to Prime Rate Loans; provided, however, that if the Company fails to reimburse
such drawing when due pursuant to this paragraph (b), then the Company shall pay
to the Issuing Lender interest on the amount of such drawing at the rate per
annum set forth in Section 3.01(c) hereof. Interest accruing pursuant to the
preceding sentence shall be for the account of the Issuing Lender, except that
interest accrued on and after the date of payment by any Lender pursuant to
this Section 2.03(b) to reimburse the Issuing Lender shall be for the account
of such Lender to the extent of such payment. The Issuing Lender shall promptly
notify the Administrative Agent (which shall notify each Lender) of each
drawing under a Letter of Credit.


 


(c)            Letter of Credit
Obligations Absolute.


 


(i)            The obligation of the Company to reimburse
the Issuing Lender as provided hereunder in respect of drawings under Letters
of Credit shall rank pari passu with the obligation of the Company to
repay the Revolving Credit Loans hereunder, and shall be absolute and
unconditional


 


H-22

















 


under any and all circumstances subject to
subsection (ii) below. Without limiting the generality of the foregoing, the
obligation of the Company to reimburse the Issuing Lender in respect of
drawings under Letters of Credit shall not be subject to any defense based on
the non-application or misapplication by the beneficiary of the proceeds of any
such drawing or the legality, validity, regularity or enforceability of the
Letters of Credit or any related document, even though such document shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Company, the beneficiary of any Letter of Credit, or any financial
institution or other party to which any Letter of Credit may be transferred. The
Issuing Lender may accept or pay any draft presented to it under any Letter of
Credit regardless of when drawn or made and whether or not negotiated, if such
draft, accompanying certificate or documents and any transmittal advice are
presented or negotiated on or before the expiry date of such Letter of Credit
or any renewal or extension thereof then in effect, and is in substantial
compliance with the terms and conditions of such Letter of Credit. Furthermore,
neither the Issuing Lender nor any of its correspondents nor any Lender shall
be responsible, as to any document presented under a Letter of Credit which
appears to be regular on its face, and appears on its face to be in substantial
compliance with the terms of such Letter of Credit, for the validity or
sufficiency of any signature or endorsement, for delay in giving any notice or
failure of any instrument to bear adequate reference to any Letter of Credit,
or for failure of any Person to note the amount of any draft on the reverse of
any Letter of Credit. The Issuing Lender shall have the right, in its sole
discretion, to decline to accept any documents and to decline to make payment
under any Letter of Credit if the documents presented are not in strict
compliance with the terms of such Letter of Credit.


 


(ii)           Any action, inaction or omission on the part of the Issuing Lender or
any of its correspondents under or in connection with any Letter of Credit or
the related instruments, documents or property, if in good faith and in
conformity with such laws, regulations or customs as are applicable, shall be
binding upon the Company and shall not place the Issuing Lender or any of its
correspondents or any Lender under any liability to the Company in the absence
of (x) gross negligence or willful misconduct by the Issuing Lender or its
correspondents or (y) the failure by the Issuing Lender to pay under a Letter
of Credit after presentation of a draft and documents strictly complying with
such Letter of Credit unless the Issuing Lender is prohibited from making such
payment pursuant to a court order. The Issuing Lender’s rights, powers,
privileges and immunities specified in or arising under this Agreement are in
addition to any heretofore or at any time hereafter otherwise created or
arising, whether by statute or rule of law or contract. All Letters of Credit
issued hereunder will, except to the extent otherwise expressly provided
hereunder, be governed by the UCP to the extent applicable and not inconsistent
with the laws of the State of New York.


 


(d)           Obligations of Lenders in
Respect of Letters of Credit. Each
Lender acknowledges that each Letter of Credit issued by the Issuing Lender
pursuant to this Agreement is issued on behalf of and with the ratable
participation of all of the Lenders (i.e., in accordance with their respective
Commitment Proportions), and each Lender agrees to make the payments required
by subsection (b) above and agrees to be responsible for its pro  rata
share of all liabilities incurred by the Issuing Lender with respect to each
Letter of Credit issued, established, opened or extended by the Issuing Lender
pursuant to this Agreement for the account of the Company hereunder. Each
Lender agrees with the Issuing Lender and the other Lenders that its obligation
to make the payments required by subsection (b) above shall not be affected in
any way by any circumstances (other than the gross negligence or willful
misconduct of the Issuing Lender) occurring before or after the making of any
payment by the Issuing Lender pursuant to any Letter of Credit, including,
without limitation: (i) any modification or amendment of, or any consent,
waiver, release or forbearance with respect to, any of the terms of this
Agreement or any other instrument or document referred to herein; (ii) the
existence of any Default or Event of Default; or (iii) any change of any kind
whatsoever in the financial position or credit worthiness


 


H-23

















 


of the Company.


 


(e)           Replacement of the Issuing
Lender. The Issuing Lender
may be replaced at any time by written agreement among the Company, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall
become effective, the Company shall pay all unpaid fees accrued for the account
of the replaced Issuing Lender pursuant to Section 3.04 hereof. From and after
the effective date of any such replacement, (i) the successor Issuing Lender
shall have all the rights and obligations of the Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter, and (ii)
references herein to the term “Issuing Lender” shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement
of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a
party hereto and shall continue to have all the rights and obligations of an
Issuing Lender under this Agreement with respect to Letters of Credit issued
prior to such replacement, but shall not be required to issue additional
Letters of Credit.


 


SECTION 2.04.          Swingline Loans.


 


(a)           Subject to the terms and conditions, and
relying upon the representations and warranties, set forth herein, the Swingline
Lender agrees to make loans in Dollars (individually a “Swingline Loan” and,
collectively, the “Swingline Loans”) to the Company from time to time during
the Revolving Credit Commitment Period up to, but not exceeding, at any one
time outstanding the Swingline Commitment; provided, however,
that no Swingline Loan shall be made if, after giving effect to such Swingline
Loan, the Dollar Equivalent Amount of the Aggregate Outstandings would exceed
the Total Commitment; and provided  further that no Swingline Loan
shall be made without the consent of the Required Lenders during the occurrence
and continuance of an Event of Default. The proceeds from Swingline Loans may
not be used to repay outstanding Revolving Credit Loans. During the Revolving
Credit Commitment Period, the Company may from time to time borrow, repay and
reborrow Swingline Loans on or after the date hereof and prior to the Revolving
Credit Commitment Termination Date, subject to the terms, provisions and
limitations set forth herein. Each Swingline Loan shall be a Prime Rate Loan.


 


(b)           The Company shall give the Administrative Agent irrevocable written
notice (or telephonic notice promptly confirmed in writing) not later than 2:00
p.m. (New York, New York time) on the date of each proposed Swingline Loan
under this Section 2.04. Such notice shall be irrevocable and shall specify (i)
the amount of the proposed borrowing, and (ii) the proposed Borrowing Date. Upon
receipt of such notice from the Company, the Administrative Agent shall
promptly notify the Swingline Lender and each Lender thereof. Each borrowing of
a Swingline Loan shall be in an amount not less than $100,000 or, if greater,
whole multiples of $100,000 in excess thereof. The Swingline Lender shall make
each Swingline Loan available to the Company by means of a credit to the
operating account of the Company with the Swingline Lender (or, in the case of
a Swingline Loan made to finance or reimburse a Letter of Credit drawing in
accordance with Section 2.03(b) hereof, by remittance to the Issuing Lender) by
4:00 p.m. (New York, New York time) on the requested date of such Swingline
Loan.


 


(c)           So long as no Default or Event of Default has occurred and is
continuing, the Company may repay Swingline Loans with the proceeds of a
Revolving Credit Loan. Each Swingline Loan shall be payable on demand. The
Swingline Lender may, at any time, require the Lenders to acquire
participations with respect to all or a portion of the Swingline Loans
outstanding. If (i) the Company desires to repay such Swingline Loan with the
proceeds of a Revolving Credit Loan or (ii) the Swingline


 


H-24

















 


Lender desires to have the Lenders acquire
participations, the Swingline Lender shall, by written notice given to the Administrative
Agent not later than 10:00 a.m. (New York, New York time) on any Business Day,
require the Lenders to acquire participations on such Business Day with respect
to all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans which will become Revolving
Credit Loans. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such Lender’s
Commitment Proportion of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Commitment Proportion of such Swingline Loan or Loans. Each
Lender acknowledges and agrees that its obligation to acquire a  participation in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or Event of Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 3.12 hereof with respect to Loans made by such Lender,
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Company of any participation in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Company (or other party on
behalf of the Company) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of a participation therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of a
participation in a Swingline Loan pursuant to this paragraph (c) shall not
relieve the Company of any default in the payment thereof.


 


(d)           The agreement of the Swingline Lender to make Swingline Loans pursuant
to this Section 2.04 shall automatically terminate on the Revolving Credit
Commitment Termination Date. Upon such termination, the Company shall
immediately repay the Swingline Lender or the Administrative Agent (for the
benefit of the applicable Lenders), as applicable, in full the principal amount
of the Swingline Loans then outstanding, together with all accrued interest
thereon and all other amounts due and payable hereunder.


 


(e)           The Swingline Loans made by the Swingline Lender shall be evidenced by
a promissory note of the Company (the “Swingline Note”), substantially
in the form attached hereto as Exhibit B,
appropriately completed, duly executed and delivered on behalf of the Company
and payable to the order of the Swingline Lender in a principal amount equal to
the Swingline Commitment. The Swingline Note shall (a) be dated the Closing
Date, (b) be stated to mature on the Revolving Credit Commitment Termination
Date, and (c) bear interest from the date thereof until paid in full on the
unpaid principal amount thereof from time to time outstanding as provided in
Section 3.01 hereof. The Swingline Lender is authorized to record the date and
amount of each Swingline Loan and the date and amount of each payment or
prepayment of principal of each Swingline Loan in the Swingline Lender’s
records or on the grid schedule annexed to the Swingline Note; provided,
however, that the failure of the Swingline Lender to set forth each such
Swingline Loan, payment and other information shall not in any manner affect
the obligation of the Company to repay each Swingline Loan made by the
Swingline Lender in accordance with the terms of the Swingline Note and this
Agreement. The Swingline Note, the grid schedule and the books and records of
the Swingline Lender shall constitute presumptive evidence of the information
so recorded absent demonstrable error.


 


H-25

















 


ARTICLE III

PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;

FEES AND PAYMENTS


 


SECTION 3.01.          Interest Rate; Continuation and Conversion of Loans.


 


(a)           Each Prime Rate Loan  shall bear
interest for the period from the date thereof on the unpaid principal amount
thereof at a fluctuating rate per annum equal to the Prime Rate plus the
Applicable Rate.


 


(b)           Each Eurocurrency Loan shall bear interest for the Interest Period
applicable thereto on the unpaid principal amount thereof at a rate per annum
equal to the Reserve Adjusted Eurocurrency Rate determined for each Interest
Period thereof in accordance with the terms hereof plus the Applicable
Rate.


 


(c)           Upon the occurrence and during the continuance of an Event of Default
the outstanding principal amount of the Loans shall, at the option of the
Required Lenders, bear interest payable on demand at a rate of interest (i)
with respect to payments of principal, 2% per annum plus the interest rate
otherwise then in effect and (ii) with respect to payments of any other amount,
2% per annum plus the rate that would be applicable to Prime Rate Loans, from time
to time.


 


(d)           If the Company shall default in the payment of the principal or
interest on any portion of any Loan or any other amount becoming due hereunder,
whether with respect to the reimbursement of drawings under Letters of Credit,
interest, fees, expenses or otherwise, the Company shall on demand from time to
time pay interest on such defaulted amount accruing from the date of such
default (without reference to any period of grace) up to and including the date
of actual payment (after as well as before judgment) at a rate of two (2%)
percent per annum plus the interest rate otherwise then in effect, or if no
interest rate is in effect, two (2%) percent per annum plus the Prime Rate.


 


(e)           The Company may elect from time to time to convert outstanding
Revolving Credit Loans from Eurocurrency Loans denominated in Dollars to Prime
Rate Loans by giving the Administrative Agent 
irrevocable written notice of such election not later than 11:00 a.m.
(New York, New York time) three Business Day prior to the effective date of
such election, provided that any such conversion of Eurocurrency Loans shall
only be made on the last day of an Interest Period with respect thereto or upon
the date of payment in full of any amounts owing pursuant to Section 3.08 hereof
as a result of such conversion. Upon receipt of such notice, the Administrative
Agent shall promptly notify each Lender thereof. The Company may elect from
time to time to convert outstanding Revolving Credit Loans from Prime Rate
Loans to Eurocurrency Loans by giving the Administrative Agent irrevocable
written notice of such election not later than (i) the Applicable Offshore
Time, four Business Days prior to the date of the proposed conversion if the
conversion is to a Eurocurrency Loan denominated in any Approved Currency other
than Dollars, or (ii) 11:00 a.m. (New York, New York time) three Business Days
prior to the date of the proposed conversion if the conversion is to a
Eurocurrency Loan denominated in Dollars. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Prime Rate Loans (other than Swingline Loans) may be converted
as provided herein, provided that each conversion shall be in the principal
amount of $2,000,000 (or the Applicable Currency Equivalent thereof) or whole
multiples of $1,000,000 (or the Applicable Currency Equivalent thereof) in
excess thereof; and further provided that no Default or Event


 


H-26

















 


of Default shall have occurred and be
continuing. Any conversion to or from Eurocurrency Loans hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of all Eurocurrency Loans having
the same Interest Period and denominated in the same currency shall not be less
than $2,000,000 (or the Applicable Currency Equivalent thereof).


 


(f)            Any Eurocurrency Loan in a minimum principal
amount of $2,000,000 (or the Applicable Currency Equivalent thereof) may be
continued as such upon the expiration of an Interest Period with respect
thereto by compliance by the Company with the notice provisions contained in
the definition of Interest Period. If the Company shall not have so notified
the Administrative Agent of its intention to continue such Loan, upon the
expiration of such Interest Period for (i) any Eurocurrency Loan denominated in
Dollars, or any portion thereof, such Loan or portion thereof shall be
automatically converted to a Prime Rate Loan, except to the extent that such
Loan shall have been repaid hereunder or shall be required to be repaid
hereunder, or (ii) any Eurocurrency Loan denominated in an Approved Currency
other than Dollars, or any portion thereof, such Loan or portion thereof shall
be required to be repaid. Notwithstanding anything to the contrary, no
Eurocurrency Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to a Prime
Rate Loan, if such Eurocurrency Loan is denominated in Dollars or repaid in
full, if such Eurocurrency Loan is denominated in an Approved Currency other
than Dollars, on the last day of the Interest Period in effect when the
Administrative Agent is notified, or otherwise has actual knowledge, of such
Default or Event of Default.


 


(g)           If the Company shall fail to select the duration of any Interest Period
for any Eurocurrency Loan in accordance with the definition of “Interest Period”
set forth in Section 1.01 hereof, the Company shall be deemed to have selected
an Interest Period of one month.


 


(h)           No Revolving Credit Loan may be converted to or continued as a
Eurocurrency Loan (i) with an Interest Period that extends beyond the Revolving
Credit Commitment Termination Date, or (ii) less than one month before the
Revolving Credit Commitment Termination Date. In addition, except as otherwise
provided in Sections 3.01(e) and 3.06 
hereof or in the definition of “Interest Period” in Section 1.01 hereof,
no Loan in one Approved Currency may be converted to a Loan in another Approved
Currency.


 


(i)            Anything in this Agreement or in any Note to
the contrary notwithstanding, the obligation of the Company to make payments of
interest shall be subject to the limitation that payments of interest shall not
be required to be paid to a Lender to the extent that the charging or receipt
thereof would not be permissible under the law or laws applicable to such
Lender limiting the rates of interest that may be charged or collected by such
Lender. In each such event payments of interest required to be paid to such
Lender shall be calculated at the highest rate permitted by applicable law
until such time as the rates of interest required hereunder may lawfully be
charged and collected by such Lender. If the provisions of this Agreement or
any Note would at any time otherwise require payment by the Company to any
Lender of any amount of interest in excess of the maximum amount then permitted
by applicable law, the interest payments to such Lender shall be reduced to the
extent necessary so that such Lender shall not receive interest in excess of
such maximum amount.


 


(j)            Interest on each Loan shall be payable in
arrears on each applicable Interest Payment Date and shall be calculated on the
basis of a year of 360 days and shall be payable for the actual days elapsed. Any
rate of interest on the Loans or other Obligations which is computed on the
basis of the Prime Rate shall change when and as the Prime Rate changes in
accordance with the definition


 


H-27

















 


thereof. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall, absent
demonstrable error, be conclusive and binding for all purposes.


 


SECTION 3.02.          Use of Proceeds.  The proceeds of the Revolving Credit Loans shall be used (a) to
refinance the Existing Indebtedness, (b) to finance Permitted Acquisitions, (c)
for general working capital and other corporate purposes and (d) to finance
repurchases by the Company of the Subordinated Notes. The Swingline Loans shall
be used by the Company for general working capital and other corporate purposes.
Letters of Credit shall be issued by the Issuing Lender for the account of the
Company and shall be issued for purposes in connection with, and in the
ordinary course of, the business of the Company or the Guarantors consistent
with historical purposes of standby and commercial letters of credit issued for
the account of the Company prior to the date hereof.


 


SECTION 3.03.          Prepayments.


 


(a)           Voluntary. The Company may, at any time and from time to time, prepay the then
outstanding Loans (including, without limitation, Swingline Loans), in whole or
in part, without premium or penalty, except as provided in Section 3.08 hereof,
upon written notice to the Administrative Agent (or telephonic notice promptly
confirmed in writing) not later than 11:00 a.m. (New York, New York time) three
Business Days before the date of prepayment with respect to prepayments of
Eurocurrency Loans, or 11:00 a.m. (New York, New York time) on the day of
prepayment with respect to Prime Rate Loans. Each notice shall be irrevocable
and shall specify the date and amount of prepayment and whether such prepayment
is of Eurocurrency Loans or Prime Rate Loans or a combination thereof, and if a
combination thereof, the amount of prepayment allocable to each. Upon receipt
of such notice to repay Revolving Credit Loans, the Administrative Agent shall
promptly notify each Lender thereof. If such notice is given, the Company shall
make such prepayment, and the amount specified in such notice shall be due and
payable, on the date specified therein. Each partial prepayment pursuant to
this Section 3.03 shall be in a principal amount of (i) $1,000,000 (or the
Applicable Currency Equivalent thereof), or whole multiples of $1,000,000 (or
the Applicable Currency Equivalent thereof) in excess thereof with respect to
Eurocurrency Loans, and (ii) $500,000 or whole multiples of $100,000 in excess
thereof with respect to Prime Rate Loans.


 


(b)           Mandatory. To the extent that (i) the Dollar Equivalent Amount of the Aggregate
Outstandings exceeds the Total Commitment or (ii) the Dollar Equivalent Amount
of all Obligations denominated in Approved Currencies other than Dollars
exceeds the Eurocurrency Sublimit due to a change in applicable Exchange Rates,
then the Company shall immediately prepay the Revolving Credit Loans to the
extent necessary to cause compliance after repayment in full of the Loans with
each of the foregoing. To the extent that such prepayments are insufficient to
cause such compliance, the Company shall pledge to the Administrative Agent,
for the ratable benefit of the Lenders, Cash Collateral in an amount equal to
the amount of such short-fall, which Cash Collateral shall secure the
reimbursement obligations of the Company to the Issuing Lender with respect to
Letters of Credit. All such prepayments shall be applied, first, to Prime Rate
Loans outstanding and second, to Eurocurrency Loans outstanding, in such order
as the Administrative Agent shall determine in its sole and absolute
discretion.


 


All prepayments shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment.


 


SECTION 3.04.          Fees.


 


(a)           The Company agrees to pay to the Administrative
Agent for the account of, and


 


H-28

















 


pro rata distribution to, each Lender an unused fee (the “Unused Fee”)
on the average daily unused portion of the Total Commitment (without giving
effect to any Swingline Loans then outstanding) from the date of this Agreement
until the Revolving Credit Commitment Termination Date at a rate per annum
equal to the Applicable Rate, based on a year of 360 days, payable in arrears
on the last day of March, June, September, and December of each year commencing
September 30, 2007, on the Revolving Credit Commitment Termination Date and on
each date the Revolving Credit Commitment is permanently reduced in whole or in
part.


 


(b)           The Company agrees to pay to the Administrative Agent for the account
of, and pro rata distribution to, each Lender a closing fee equal to 0.125% of
such Lender’s Revolving Credit Commitment on the Closing Date.


 


(c)           The Company shall pay to the Administrative Agent for the account of,
and pro rata distribution to, the Lenders a commission with respect to the
Lenders’ participation in Standby Letters of Credit equal to the Standby LC
Margin multiplied by the average daily amount of the Standby LC Exposure during
the period from and including the Closing Date to but excluding the later of
(a) the Revolving Credit Commitment Termination Date and (b) the date on which
such Lender ceases to have any Standby LC Exposure. Such commissions with
respect to Standby Letters of Credit shall be payable in arrears on the last
Business Day of March, June, September and December of each year, commencing
September  30, 2007; provided that all such fees
shall be payable on the date on which the Total Commitment terminates and any
such fees accruing after the date on which the Total Commitment terminates
shall be payable on demand. All commissions with respect to Standby Letters of
Credit shall be computed on the basis of a year of three hundred sixty (360)
days and shall be payable for the actual number of days elapsed.


 


(d)           The Company shall pay to the Administrative Agent for the account of,
and pro rata distribution to each Lender, a payment fee equal to 0.25% of the
amount paid on each Commercial Letter of Credit payable on the date of payment
of such amount by the Issuing Lender.


 


(e)           In addition, the Company shall pay to the Issuing Lender for its own
account, upon issuance of any Letter of Credit hereunder, a fronting fee equal
to the greater of (i) 0.125% of the face amount of each Letter of Credit issued
hereunder, and (ii) $250. In addition, the Company shall pay to the Issuing
Lender, upon its demand and for its own account, the customary fees charged by
the Issuing Lender with respect to the processing and administration of Letters
of Credit (including, without limitation, amendments to Letters of Credit).


 


(f)            In addition, the Company agrees to pay to the
Administrative Agent and the Lead Arranger for the Administrative Agent’s and
the Lead Arranger’s own account, such agency, arrangement and other fees as
agreed to between the Administrative Agent, the Lead Arranger and the Company.


 


SECTION 3.05.          Inability to Determine
Interest Rate.  In the event that the Administrative Agent
shall have determined in good faith (which determination shall be conclusive
and binding upon the Company, absent demonstrable error) that, by reason of
circumstances affecting the London interbank market, adequate and reasonable
means do not exist for ascertaining the Reserve Adjusted Eurocurrency Rate
applicable pursuant to Section 3.01(b) hereof for any requested Interest Period
with respect to (a) the making of a Eurocurrency Loan, (b) a Eurocurrency Loan
that will result from the requested conversion of a Prime Rate Loan  into a Eurocurrency Loan, or (c) the
continuation of a Eurocurrency Loan beyond the expiration of the then current
Interest Period with respect thereto, the Administrative Agent shall forthwith
give notice by telephone of such determination, promptly confirmed


 


H-29

















 


in
writing, to the Company and each Lender. Until the Administrative Agent
notifies the Company and the Lenders that the circumstances giving rise to the
suspension described herein no longer exist, the Company shall not have the
right to request or continue a Eurocurrency Loan or to convert a Prime Rate
Loan  to a Eurocurrency Loan.


 


SECTION 3.06.          Illegality.  Notwithstanding any other provisions herein, if any introduction of or
change in, after the date hereof, any law, regulation, treaty or directive or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurocurrency Loans or if any Lender determines that
it is unable to make a Eurocurrency Loan in any Approved Currency because such
Approved Currency is unavailable as contemplated by this Agreement, such Lender
shall forthwith give notice by telephone of such circumstances, promptly
confirmed in writing, to the Administrative Agent, which notice the
Administrative Agent shall promptly transmit to the Company and the other
Lenders and, subject to the provisions of Section 3.09 hereof, (a) the
commitment of such Lender to make and to allow conversion to or continuations
of Eurocurrency Loans or of Eurocurrency Loans in such Approved Currency, as
the case may be, shall forthwith be cancelled for the duration of such
illegality, and (b) the Revolving Credit Loans then outstanding as Eurocurrency
Loans, if any, shall be converted automatically to Prime Rate Loans on the next
succeeding last day of each Interest Period applicable to such Eurocurrency
Loans or within such earlier period as may be required by law. The Company
shall pay to such Lender, upon demand, any additional amounts required to be
paid pursuant to Section 3.08 hereof.


 


SECTION 3.07.          Increased Costs.


 


(a)           In the event that any introduction of or
change in, after the date hereof, any applicable law, regulation, treaty,
order, or directive, or in the interpretation or application thereof
(including, without limitation, any request, guideline or policy, whether or
not having the force of law, of or from any central bank or other governmental
authority, agency or instrumentality and including, without limitation,
Regulation D), by any authority charged with the administration or
interpretation thereof shall occur, which:


 


(i)            shall subject any Lender or the Issuing
Lender to any Non-Excluded Taxes; or


 


(ii)           shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement (whether or not having the force of law)
against assets held by, or deposits or other liabilities in or for the account
of, advances or loans by, or other credit extended by, or any other acquisition
of funds by, any office of any Lender or the Issuing Lender; or


 


(iii)          shall impose on any Lender or the Issuing Lender any other condition;


 


and the result of any of the foregoing is to
increase the cost to such Lender or the Issuing Lender  of making, renewing or maintaining or
participating in advances or extensions of credit hereunder or to reduce any
amount receivable hereunder, in each case by an amount which such Lender or the
Issuing Lender deems reasonably material, then, in any such case, subject to
the provisions of Section 3.10 hereof, the Company shall pay such Lender or the
Issuing Lender, such additional amount or amounts as such Lender or the Issuing
Lender shall have determined in good faith will compensate such Lender for such
increased costs or reduction.


 


(b)           If any Lender or the Issuing Lender shall have determined that the
adoption of, or


 


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any change in, any applicable law, rule or
regulation regarding capital adequacy, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or the Issuing Lender (or any lending office of any Lender or the
Issuing Lender which funds Loans hereunder) or any Lender’s or the Issuing
Lender’s holding company, with any request, guideline or directive regarding
capital adequacy (whether or not having the force of the law) of any such
authority, central bank or comparable agency, in each case adopted after the
Closing Date, has or would have the effect of reducing the rate of return on
such Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s
or the Issuing Lender’s holding company as a consequence of its obligations
hereunder to a level below that which such Lender or the Issuing Lender (or
such holding company) could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or the Issuing Lender’s
policies and the policies of such Lender’s or the Issuing Lender’s holding
company with respect to capital adequacy) by an amount deemed by such Lender or
the Issuing Lender to be material, then from time to time, the Company shall
pay to such Lender or the Issuing Lender the additional amount or amounts as 

such Lender or the Issuing Lender shall have determined will compensate such
Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding
company for such reduction.


 


(c)           A certificate of a Lender setting forth the amount or amounts payable
pursuant to Sections 3.07(a) and 3.07(b) hereof shall be conclusive and binding
on the Company absent demonstrable error. The Company shall pay such Lender or
the Issuing Lender the amount shown as due on any such certificate within
fifteen days after receipt thereof.


 


(d)           In the event any Lender or the Issuing Lender shall be entitled to
compensation pursuant to Section 3.07(a) or Section 3.07(b) hereof, it shall
promptly notify the Administrative Agent and the Company of the event by reason
of which it has become so entitled; provided, however, no failure on the part
of any Lender or the Issuing Lender to demand compensation under clause (a) or
clause (b) above on one occasion shall constitute a waiver of its right to
demand compensation on any other occasion.


 


SECTION 3.08.          Indemnity.  The Company agrees to indemnify each Lender and to hold each Lender
harmless from any loss, cost or expense which such Lender may sustain or incur,
including, without limitation, interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain Eurocurrency Loans
hereunder, as a consequence of (a) default by the Company in payment of the
principal amount of or interest on any Eurocurrency Loan, (b) default by the
Company to accept or make a borrowing of a Eurocurrency Loan or a conversion
into or continuation of a Eurocurrency Loan after the Company has requested
such borrowing, conversion or continuation, (c) default by the Company in
making any prepayment of any Eurocurrency Loan after the Company gives a notice
in accordance with Section 3.03 hereof and/or (d) the making of any payment or
prepayment (whether mandatory or optional) of a Eurocurrency Loan or the making
of any conversion of a Eurocurrency Loan to a Prime Rate Loan  on a day which is not the last day of the
applicable Interest Period with respect thereto. A certificate of a Lender
setting forth such amounts shall be conclusive and binding on the Company
absent demonstrable error. The Company shall pay such Lender the amount shown
as due on any certificate within fifteen days after receipt thereof.


 


SECTION 3.09.          Mitigation, Obligations; Replacement of
Lenders.


 


(a)           Each Lender agrees to use reasonable efforts
to designate an alternate Lending Office with respect to any Type of Loan
affected by the events or circumstances described in Section 3.05, Section
3.06, Section 3.07 or Section 3.10 hereof to avoid or minimize the Company’s
liability


 


H-31

















 


thereunder; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional cost or legal, regulatory or
administrative burdens deemed by such Lender, in its sole discretion, to be
material.


 


(b)           If any Lender is affected by the events or circumstances described in
Section 3.05, 3.06, 3.07 or 3.10 hereof and requests additional compensation
pursuant to the terms of this Agreement, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (and in accordance with
the restrictions set forth in Section 10.05 hereof), all its interests, rights,
and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if such Lender accepts such assignment);
provided, that (i) the Company shall have received the prior written
consent of the Administrative Agent (and if a Commitment is being assigned, the
Issuing Lender and the Swingline Lender), which consent shall not be
unreasonably withheld or delayed, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal amount of its Loans and
participation in Swingline Loans and Letters of Credit, accrued interest
thereon, accrued fees and other amounts payable to it hereunder from the
assignee (to the extent of the outstanding principal and accrued interest and
fees) or the Company (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation pursuant to
Section 3.05, 3.06 or 3.07 hereof or payments required to be made pursuant to
Section 3.10 hereof, such assignment will result in a reduction of such
compensation or payments. A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegations cease to apply.


 


SECTION 3.10.          Taxes.


 


(a)           Except as set forth in clause (d) below or as
required by law, all payments made by the Company under this Agreement shall be
made free and clear of, and without reduction for or on account of, any present
or future taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding (i) income, branch profits and
franchise taxes (imposed in lieu of income taxes) imposed on the Administrative
Agent, the Issuing Lender or a Lender as a result of a present, former or
future connection between the jurisdiction of the government or the taxing
authority imposing such tax and the Administrative Agent, the Issuing Lender or
a Lender or the lending office of the Administrative Agent, the Issuing Lender
or a Lender (excluding a connection arising solely from the Administrative
Agent, the Issuing Lender or a Lender having executed this Agreement, the Notes
or the other Loan Documents) or any political subdivision or taxing authority
thereof or therein, and (ii) taxes (including withholding taxes) imposed by
reason of the failure of the Administrative Agent, the Issuing Lender or a
Lender, if organized outside of the United States, to comply with Section 3.10(c)
hereof (or the inaccuracy at any time of the certificates, documents or other
evidence delivered thereunder) (such non-excluded taxes being called “Non-Excluded
Taxes”). If any Non-Excluded Taxes are required to be withheld from any
amounts payable to the Administrative Agent, the Issuing Lender or any Lender
hereunder, or under the Notes, the amount so payable to the Administrative
Agent, the Issuing Lender or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent, the Issuing Lender or such
Lender (after payment of all Non-Excluded Taxes, and free and clear of all
liability in respect of such Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this Agreement
and the Notes provided, however, that the Company shall not be
required to increase any such amounts payable to any Lender with respect to any
Non-Excluded Taxes (i) that are attributable to such Lender’s failure to comply
with the requirements of Section 3.09 hereof, (ii) that are United States


 


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withholding taxes imposed (or branch profits taxes imposed in lieu
thereof) on amounts payable to such Lender at the time such Lender becomes a
party to this Agreement, except to the extent that such Lender’s assignor (if
any) was entitled, at the time of assignment, to receive additional amounts
from the Company with respect to such Non-Excluded Taxes pursuant to this
Section 3.10(a), or (iii) that are imposed as a result of any event occurring
after such Lender becomes a Lender other than a change in law or regulation or
the introduction of any law or regulation or a change in interpretation or
administration of any law. Whenever any Non-Excluded Taxes are payable by the
Company, as promptly as possible thereafter, the Company shall send to the
Administrative Agent for its own account or for the account of the Issuing
Lender or such Lender, as the case may be, a certified copy of an original
official receipt showing payment thereof. If the Company fails to pay
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Administrative Agent, the
Issuing Lender and the Lenders for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent, the Issuing Lender or such
Lender as a result of any such failure together with any expenses payable by
the Administrative Agent, the Issuing Lender or such Lender in connection
therewith; provided that the Administrative Agent, Issuing Lender or such
Lender has provided the Company with notice thereof as required by Section
10.01 hereof, accompanied by a demand for payment.


 


(b)           If a Lender or the Administrative Agent becomes aware that it is
entitled to claim a refund from a governmental authority in respect of any
Non-Excluded Taxes as to which it has been indemnified by the Company or with
respect to which the Company has paid additional amounts pursuant to this
Section 3.10, it promptly shall notify the Company in writing of the
availability of such refund claim and shall make a timely claim to such
taxation authority for such refund at the Company’s expense. If a Lender or the
Administrative Agent receives a refund (including pursuant to a claim for
refund made pursuant to the preceding sentence) or a permanent net tax benefit
in respect of any Non-Excluded Taxes as to which it has been indemnified by the
Company or with respect to which the Company has paid additional amounts
pursuant to this Section 3.10, it shall within 30 days from the date of such
receipt pay over the amount of such refund or permanent net tax benefit to the
Company, net of all reasonable out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than interest paid by the
relevant taxation authority with respect to such refund); provided that the
Company, upon the request of such Lender or the Administrative Agent, agrees to
repay the amount paid over to the Company (plus penalties, interest or other
reasonable charges) to such Lender or the Administrative Agent  in the event such Lender or the Administrative
Agent is required to repay such refund to such taxation authority or loses such
net tax benefit.


 


(c)           On or before the date on which it becomes a party to this Agreement,
each Lender that is not organized under the laws of the United States or a
state thereof agrees that it will deliver to the Company and the Administrative
Agent, as applicable: (i) two duly completed copies of United States Internal
Revenue Service Form W-8BEN, or successor applicable form, certifying in each
case under an applicable treaty that such Lender is entitled to receive all
payments under this Agreement without deduction or withholding of any United
States federal income taxes, (ii) two duly completed copies of United States
Internal Revenue Service Form W-8ECI, or successor applicable form, or (iii)
two duly completed copies of United States Internal Revenue Service Form
W-8BEN, or successor applicable form, and a statement in the form of Exhibit H hereto. Each Lender which delivers to the Company
and the Administrative Agent a Form W-8BEN or W-8ECI pursuant to the preceding
sentence further undertakes to deliver to the Administrative Agent two further
copies of the said statement and Form W-8BEN or W-8ECI, or successor applicable
forms, and, if applicable, the statement, or other manner of certification, as
the case may be, on or before the date that any such statement or form expires
or becomes


 


H-33

















 


obsolete or after the occurrence of any event
requiring a change in the most recent statement or form previously delivered by
it to the Administrative Agent, and such extensions or renewals thereof as may
be requested by the Administrative Agent, certifying that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender shall
promptly notify the Company and the Administrative Agent at any time it
determines that it is no longer in a position to provide any previously
delivered above-mentioned form or statement (or successor thereto) to the
Company and the Administrative Agent.


 


(d)           For any period with respect to which a Lender required to do so has
failed to provide the Company with the appropriate form described in Section
3.10(c) above (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under Section 3.10(c) above), such
Lender shall not be entitled to indemnification under this Section 3.10  with respect to Non-Excluded Taxes imposed by
reason of such failure; provided, however, that should a Lender
become subject to Non-Excluded Taxes because of its failure to deliver a form
required hereunder, the Company shall take such steps as such Lender reasonably
shall request to assist such Lender in recovering such Non-Excluded Taxes.


 


SECTION 3.11.          Pro Rata Treatment and
Payments.  Each borrowing by the Company from the Lenders, each conversion of a
Revolving Credit Loan pursuant to Section 3.01(d) hereof or continuation of a
Revolving Credit Loan pursuant to Section 3.01(e) hereof, each payment by the
Company on account of any fee (other than with respect to fees which are
expressly payable to the Administrative Agent or the Issuing Lender for its own
account), and any reduction of the Commitments of the Lenders hereunder shall
be made pro  rata according to the respective relevant Commitment
Proportions of the Lenders. Each payment (including each prepayment) by the
Company on account of principal of and interest on each Loan shall be made in
the Applicable Currency in which such Loan is denominated and shall be made pro
rata according to the respective outstanding principal amounts of such
Loans held by each Lender. Except as otherwise provided in Section 2.04 hereof,
all payments by the Company on account of principal of and interest on any
Swingline Loan shall be made to the Swingline Lender at its office specified on
its signature page hereof in Dollars in immediately available funds. All
payments (including prepayments) to be made by the Company on account of
principal, interest, fees and reimbursement obligations shall be made without
set-off or counterclaim and, with respect to payments of the Loans, shall be
made to the Administrative Agent, for the account of the Lenders (except as
specified above), at the Payment Office, in Dollars or the other Applicable
Currency, in immediately available funds. The Administrative Agent shall
distribute such payments with respect to Loans to the Lenders promptly upon
receipt in like funds by wire transfer of each Lender’s portion of such payment
to such Lender for the account of its Lending Office. The Administrative Agent
may, in its sole discretion, directly charge principal and interest payments
due in respect of the Loans to the Company’s accounts at the Payment Office or
any other office of the Administrative Agent. The Issuing Lender may, in its
sole discretion, directly charge reimbursement obligations with respect to
Letters of Credit to the Company’s accounts at any office of the Issuing Lender.
Except as otherwise provided in the definition of “Interest Period”, if any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.


 


SECTION 3.12.          Funding and Disbursement of
Loans.


 


(a)           Each Lender shall make each Revolving Credit
Loan denominated in Dollars to be made by it hereunder, at the Payment Office
for the account of such office and the Administrative Agent, on the applicable
Borrowing Date, in immediately available funds, by 2:00 p.m. (New York, New


 


H-34

















 


York time). Each Lender shall make each Revolving Credit Loan
denominated in an Approved Currency other than Dollars to be made by it
hereunder, at the Payment Office for the account of such office and the
Administrative Agent, on the applicable Borrowing Date, in immediately
available funds, by the Applicable Offshore Time. Unless any applicable
condition specified in Article V hereof has not been satisfied, the amount so
received by the Administrative Agent will be made available to the Company at
such Payment Office by crediting the account of the Company with such amount
and in like funds as received by the Administrative Agent; provided, however,
that if the proceeds of any Revolving Credit Loan or Swingline Loan or any
portion thereof are to be used to prepay outstanding Revolving Credit Loans,
Swingline Loans or Letter of Credit obligations, then the Administrative Agent
shall apply such proceeds for such purpose to the extent necessary and credit
the balance, if any, to the Company’s account.


 


(b)           Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a proposed Borrowing Date that such Lender will not make
the amount which would constitute its Commitment Proportion of the borrowing on
such Borrowing Date available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such Borrowing Date, and the Administrative Agent may,
in reliance upon such assumption, make available to the Company a corresponding
amount. If such amount is not made available to the Administrative Agent until
a date after such Borrowing Date, such Lender shall pay to the Administrative
Agent on demand interest on such Lender’s Commitment Proportion of such
borrowing at a rate equal to the greater of (i) the daily average Federal Funds
Rate and (ii) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation during such period, from and
including such Borrowing Date to the date on which such Lender’s Commitment
Proportion of such borrowing shall have become immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts due pursuant to this Section 3.12(b)
shall be conclusive absent demonstrable error. Nothing herein shall be deemed
to relieve any Lender from its obligations to fulfill its commitment hereunder
or to prejudice any right which the Company may have against any Lender as a
result of any default by such Lender hereunder.


 


SECTION 3.13.          Judgment Currency.  The currency in which each Loan made hereunder is denominated and the
place of payment designated therefor is of the essence. The payment obligation
of the Company hereunder in any designated currency and designated place of
payment shall not be discharged by an amount paid in another currency or in
another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on prompt conversion to the currency in which such Loan is
denominated and transfer to the designated place of payment under normal
banking procedures does not yield the amount owing hereunder at the designated
place of payment. In the event that any payment by the Company, whether
pursuant to a judgment or otherwise, upon such conversion and transfer, does
not result in payment of such amount in the currency in which such Loan is
denominated at the designated place of payment, the Administrative Agent on
behalf of the Lenders shall be entitled to demand immediate payment of, and
shall have a separate cause of action against the Company for, the additional
amount necessary to yield the amount of such currency owing hereunder.


 


SECTION 3.14.          Foreign Exchange Indemnity.  If any sum due from the Company or any Guarantor under this Agreement
or any order or judgment given or made in relation hereto has to be converted
from the currency (the “first currency”) in which the same is payable hereunder
or under such order or judgment into another currency (the “second currency”)
for the purpose of (a) making or filing a claim or proof against the Company or
any Guarantor with any Governmental Authority or in any court or tribunal or
(b) enforcing any order or judgment given or made in relation hereto, the
Company or any


 


H-35

















 


Guarantor,
as the case may be, shall indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss actually suffered as a result of
any discrepancy between (i) the rate of exchange used to convert the amount in
question from the first currency into the second currency, and (ii) the rate or
rates of exchange at which such Person, acting in good faith, purchased the
first currency with the second currency after receipt of a sum paid to it in
the second currency in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The foregoing indemnity shall constitute a separate
obligation of the Company or any Guarantor distinct from its other obligations
hereunder and shall survive the giving or making of any judgment or order in
relation to all or any of such other obligations.


 


SECTION 3.15.          Further Modifications.  The Administrative Agent may, from time to time, further modify the
terms of, and practices contemplated by, this Agreement with respect to the
Euro to the extent the Administrative Agent determines, in its reasonable
discretion, that such modifications are necessary or convenient to reflect new
laws, regulations, customs, or practices developed in connection with the Euro.
The Administrative Agent may effect such modifications, and this Agreement
shall be deemed so amended, without the consent of the Company or the Lenders
to the extent such modifications are not materially disadvantageous to the
Company and the Lenders, upon notice thereto.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES


 


In order to induce the
Lenders to enter into this Agreement and to make the Loans and other extensions
of credit herein provided for, the Company represents and warrants to the
Administrative Agent and each Lender that:


 


SECTION 4.01.          Organization, Powers.  The Company and each Guarantor (a) is a corporation, limited liability
company, partnership or other legal entity (as indicated on Schedule 4.11
hereto) duly organized or formed, validly existing and in good standing under
the laws of the jurisdiction of its formation, (b) has the corporate, limited
liability company, partnership or such other power and authority to own its
properties and to carry on its business as being conducted, (c) is duly
qualified to do business in every jurisdiction wherein the conduct of its
business or the ownership of its properties are such as to require such
qualification except those jurisdictions in which the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect,
and (d) has the corporate, limited liability company, partnership or other
power to execute, deliver and perform each of the Loan Documents to which it is
a party, including, without limitation, with respect to the Company, the power
to obtain extensions of credit hereunder and to execute and deliver the Notes. Each
other Subsidiary of the Company which is not a Guarantor (a) is a corporation,
limited liability company, partnership or other legal entity (as indicated on
Schedule 4.11 hereto) duly organized or formed, as applicable, validly existing
and,  in good standing under the laws of
the jurisdiction of its formation, (b) has the corporate, limited liability
company, partnership or other legal power and authority to own or lease its
properties and to carry on its business as being conducted on the Closing Date
and, (c) is duly qualified to do business in every jurisdiction wherein the
conduct of its business or the ownership of its properties are such as to
require such qualification, except in those jurisdictions where the failure to
be so qualified could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 4.02.          Authorization of Borrowing,
Enforceable Obligations.  The execution, delivery and performance by
the Company of this Agreement, and the other Loan Documents to which it is a
party, the borrowings and the other extensions of credit to the Company
hereunder, and the execution, delivery and performance by each Guarantor of the
Loan Documents to which such


 


H-36

















 


Guarantor
is a party, (a) have been duly authorized by all requisite corporate, limited
partnership or limited liability company action, (b) will not violate or
require any consent (other than consents as have been made or obtained and
which are in full force and effect) under (i) any provision of law applicable
to the Company or any Guarantor, any applicable rule or regulation of any
Governmental Authority, or the Certificate of Incorporation or By-laws of the
Company or the Certificate of Incorporation, By-Laws, or other organizational
documents, as applicable, of any Guarantor or (ii) any order of any court or
other Governmental Authority binding on the Company or any Guarantor, (c) will
not be in conflict with, result in a breach of or constitute (with due notice
and/or lapse of time) a default under, any indenture, agreement or other
instrument to which the Company or any Guarantor is a party, or by which the
Company or any Guarantor or any of its property is bound, which conflict,
breach or default could reasonably be expected to have a Material Adverse
Effect, or result in the creation or imposition of any Lien of any nature
whatsoever upon any of the property or assets of the Company or any Guarantor
other than as contemplated by this Agreement or the other Loan Documents. This
Agreement and each other Loan Document to which the Company or any Guarantor is
a party constitutes a legal, valid and binding obligation of the Company and
such Guarantor, as the case may be, enforceable against the Company and each
such Guarantor, as the case may be, in accordance with its terms except to the
extent that enforcement may be limited by applicable bankruptcy,
reorganization, moratorium, insolvency and similar laws affecting creditors’
rights generally or by equitable principles of general application, regardless
of whether considered in a proceeding in equity or at law.


 


SECTION 4.03.          Financial Condition.


 


(a)           The
Company has heretofore furnished to each Lender the audited consolidated
balance sheets, statements of income, retained earnings and cash flow of the
Company and its  Subsidiaries, audited by
Ernst & Young LLP, independent certified public accountants, as of and for
the fiscal year ended December 31, 2006 
Such financial statements were prepared in conformity with Generally
Accepted Accounting Principles, applied on a consistent basis, and fairly
present the consolidated financial condition and consolidated results of
operations of the Company and its Subsidiaries as of the date of such financial
statements and for the periods to which they relate and since December 31, 2006
(the “Determination Date”), no Material Adverse Effect has occurred, except as
set forth on Schedule 5.01(j). Other than obligations and liabilities arising
in the ordinary course of business since the Determination Date, there are no
obligations or liabilities contingent or otherwise, of the Company or any of
its Subsidiaries which are not reflected or disclosed on such audited
statements other than obligations or liabilities of the Company and its
Subsidiaries which are not required to be so disclosed. Notwithstanding
anything to the contrary herein, on the date of delivery of any financial
statements pursuant to Section 6.03(a) hereof, the Determination Date shall be
deemed to be the date of the prior year’s audited financial statements.


 


(b)           Each of the Company and each Guarantor is
Solvent.


 


SECTION 4.04.          Taxes.  Each of the Company and each Subsidiary of the Company has filed or has
caused to be filed all tax returns (foreign, federal, state and local) required
to be filed (including, without limitation, with respect to payroll and sales
taxes) and each of the Company and each Subsidiary of the Company has paid all
taxes (including, without limitation, all payroll and sales taxes), assessments
and governmental charges and levies shown thereon to be due, including interest
and penalties except (a) where the failure to file such tax returns or pay such
taxes, charges or levies could not reasonably be expected to have a Material
Adverse Effect and (b) taxes, assessments and governmental charges and levies
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves in conformity with Generally Accepted Accounting
Principles applied on a consistent


 


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basis
shall have been provided on the books of the Company and its Subsidiaries.


 


SECTION 4.05           Title to Properties.  Each of the Company and each Subsidiary of the Company has good title
to its respective properties and assets reflected on the financial statements
referred to in Section 4.03 hereof, except for such properties and assets as
have been disposed of since the date of such financial statements as no longer
used or useful in the conduct of their respective businesses or as have been
disposed of in the ordinary course of business or as permitted pursuant to
Section 7.04(b) hereof, and all such properties and assets are free and clear
of all Liens other than Permitted Liens.


 


SECTION 4.06           Litigation.  (a) Except as set forth on Schedule 4.06, there are no actions, suits
or proceedings (whether or not purportedly on behalf of the Company or any
Subsidiary of the Company) pending or, to the knowledge of the Company,
threatened against or affecting the Company or any such Subsidiary at law or in
equity or before or by any Governmental Authority, which involve any of the
transactions contemplated herein or which could reasonably be expected to
result in a Material Adverse Effect; and (b) neither the Company nor any
Subsidiary of the Company is in default with respect to any judgment, writ,
injunction, decree, rule or regulation of any Governmental Authority which
could reasonably be expected to result in a Material Adverse Effect.


 


SECTION 4.07.          Agreements.  Neither the Company nor any Subsidiary of the Company is a party
to any agreement, indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any judgment, order, writ, injunction,
decree or regulation which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary of the Company is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument
to which it is a party, which default could reasonably be expected to have a
Material Adverse Effect.


 


SECTION 4.08.          Compliance with ERISA.  Each Plan is in compliance in all material respects with ERISA; no Plan
is insolvent or in reorganization (as defined in Section 4241 of ERISA), no
Plan has an Unfunded Current Liability which could reasonably be expected to
have a Material Adverse Effect or to result in the imposition of any Lien, and
no Plan has an accumulated or waived funding deficiency within the meaning of
Section 412 of the Code; neither the Company nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
515, 4062, 4063, 4064, 4201 or 4204 of ERISA or reasonably expects to incur any
material liability under any of the foregoing Sections on account of the prior
termination of participation in or contributions to any such Plan; no
proceedings have been instituted to terminate any Plan which could reasonably
be expected to have a Material Adverse Effect or to result in the imposition of
any Lien; no condition exists which could reasonably be expected to present a
risk to the Company or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
and no lien imposed under the Code or ERISA on the assets of the Company or any
of its ERISA Affiliates exists or to the knowledge of the Company is likely to
arise on account of any Plan.


 


SECTION 4.09.          Federal Reserve Regulations; Use of
Proceeds.


 


(a)           Neither the Company
nor any Subsidiary of the Company is engaged principally in, nor has as one of
its important activities, the business of extending, maintaining or arranging
credit for the purpose of purchasing or carrying any “margin stock” (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
of the United States, as amended from time to time).


 


(b)           No part of the proceeds of any Loan and no other extension
of credit hereunder 


 


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will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, (i) to purchase or to
carry margin stock or to extend credit to others for the purpose of purchasing
or carrying margin stock, or to refund indebtedness originally incurred for
such purposes, or (ii) for any purpose which violates or is inconsistent with
the provisions of Regulation T, U, or X of the Board of Governors of the
Federal Reserve System.


 


(c)           The proceeds of each Loan, and each other extension of
credit hereunder, shall be used solely for the purposes permitted under Section
3.02 hereof.


 


SECTION 4.10.          Approvals.  No registration with or consent or approval of, or other action by, any
Governmental Authority or any other Person is required in connection with the
execution, delivery and performance of this Agreement by the Company or any
Guarantor, or with the execution, delivery and performance of other Loan
Documents to which it is a party or, with respect to the Company, the
borrowings and each other extension of credit hereunder other than
registrations, consents and approvals received prior to the date hereof and
disclosed to the Lenders and which are in full force and effect or such
registrations, consents and approvals required pursuant to Section 5.01 hereof.


 


SECTION 4.11.          Subsidiaries and Affiliates.  Attached hereto as Schedule 4.11 is a correct and complete list of each
of the Company’s Subsidiaries and Affiliates as of the Closing Date showing as
to each (a) Subsidiary, its name, the jurisdiction of its incorporation or
formation, its shareholders or other owners of an interest in each Subsidiary
and the number of outstanding shares or other ownership interest owned by each
shareholder or other owner of an interest and (b) Affiliate in which the Company
or any of its Subsidiaries owns an interest, the number of shares or other
ownership interests of such Affiliate owned directly or indirectly by the
Company.


 


SECTION 4.12.           Hazardous Materials.  The Company and each Subsidiary are in compliance in all material
respects with all applicable Environmental Laws and neither the Company nor any
Subsidiary has used Hazardous Materials on, from, or affecting any property now
owned or occupied or hereafter owned or occupied by the Company or any such
Subsidiary in any manner which violates any applicable Environmental Law. To
the best actual knowledge of any officer of the Company, no prior owner of any
such property or any tenant, subtenant, prior tenant or prior subtenant has
used Hazardous Materials on, from, or affecting such property in any manner
which violates, in any material respect, any applicable Environmental Law.


 


SECTION 4.13.          Investment Company
Act.  Neither the Company nor any Subsidiary of the
Company is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.


 


SECTION 4.14.          No Default.  No Default or Event of Default has occurred and is continuing.


 


SECTION
4.15.          Credit Arrangements.
 Schedule 4.15 attached hereto is a complete
and correct list of all credit agreements, indentures, purchase agreements
(other than purchase orders), guaranties, Capital Leases and other investments,
agreements and arrangements in effect on the Closing Date providing for or relating
to extensions of credit to the Company or any Subsidiaries of the Company, or
any of them (including agreements and arrangements for the issuance of letters
of credit or for acceptance financing) in respect of which the Company or any
Subsidiaries of the Company, or any of them, are in any manner directly or
contingently obligated to make aggregate payments of $1,000,000 or more; and
the maximum principal or face amounts of the credit in question, outstanding
and which can be 


 


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outstanding, are correctly stated, and all Liens of any nature given or
agreed to be given as security therefor are correctly described or indicated in
such Schedule 4.15.


 


SECTION 4.16.          Permits and Licenses.  Each of the Company and each Subsidiary of the Company has all permits,
licenses, certifications, authorizations and approvals required for it lawfully
to own and operate their respective businesses except those the failure of
which to have could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 4.17.          Compliance with Law.  The Company and each Subsidiary of the Company are each in compliance
with all laws, rules, regulations, orders and decrees which are applicable to
the Company or any such Subsidiary, or to any of their respective properties,
which the failure to comply with could reasonably be expected to have a
Material Adverse Effect.


 


SECTION 4.18.          Disclosure.  Neither this Agreement, any other Loan Document, nor any other
document, certificate or written statement furnished to the Administrative
Agent, the Issuing Lender, or any Lender by or on behalf of the Company or any
of its Subsidiaries for use in connection with the transactions contemplated by
this Agreement contains any untrue statement of material fact or omits to state
a material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which they were made.


 


SECTION 4.19.          Labor Disputes and Acts of God.
 Neither the business nor the properties of
the Company or any Subsidiary of the Company are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance), which could reasonably be expected to
have a Material Adverse Effect.


 


SECTION 4.20.          Pledge Agreements.  Each Pledge Agreement executed by the Company and the Guarantors shall
constitute a valid and continuing lien on and security interest in the Pledged
Interests (as defined in such Pledge Agreement) referred to in such Pledge
Agreement to the extent provided therein and under applicable law in favor of
the Administrative Agent for the ratable benefit of the Lenders, prior to all
Liens, other than Permitted Liens.


 


ARTICLE
V

CONDITIONS OF LENDING


 


SECTION 5.01.          Conditions
to Initial Extension of Credit.  The obligation of each Lender to make its
initial Loan hereunder, and the obligation of the Issuing Lender to issue the
initial Letter of Credit, are subject to the following conditions precedent:


 


(a)           Notes.  On or prior to the Closing Date, the
Administrative Agent shall have received (i) for the account of each Lender
(other than the Issuing Lender and the Swingline Lender), a Revolving Credit
Note and (ii) for the account of the Swingline Lender, a Swingline Note, each
duly executed by the Company.


 


(b)           Guaranty; Security
Agreement.  On or prior to
the Closing Date, the Administrative Agent shall have received, with a counterpart
for each Lender, (i) a Reaffirmation and Amendment to the Guaranty, duly
executed by each Existing Guarantor, (ii) a Reaffirmation and Amendment to the
Security Agreement, duly executed by the Company and each Existing Guarantor,
and (ii) a Joinder Agreement,, duly executed by each New Guarantor, each in
form and substance satisfactory 


 


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to the Administrative Agent.


 


(c)           Pledge Agreements.  On or prior to the Closing Date, the
Administrative Agent shall have received the Pledge Agreements duly executed by
the Company and Guarantors, as applicable, together with all stock
certificates, if any, evidencing the shares pledged under the Pledge Agreements
and undated stock powers duly executed in blank by the Company or the
Guarantors and UCC-1 financing statements required pursuant to the Pledge
Agreements, as appropriate.


 


(d)           Opinion of Counsel.  On or prior to the Closing Date, the
Administrative Agent shall have received a written opinion of Kaye Scholer, LLP
substantially in the form of Exhibit G
attached hereto.


 


(e)           Supporting Documents.  On or prior to the Closing Date, the
Administrative Agent shall have received (i) a certificate of good standing for
the Company and each Guarantor from the secretary of state of the states of
their organizational jurisdiction dated as of a recent date; (ii) copies of the
Certificate of Incorporation and By-laws or other organization documents, as
applicable of the Company and each Guarantor, certified by the Secretary or an
Assistant Secretary of such entity; and (iii) a certificate of the Secretary or
an Assistant Secretary of the Company and each Guarantor dated the Closing Date
and certifying:  (x) that neither the Certificates
of Incorporation, the By-laws nor any other applicable organizational documents
of the Company or any Guarantor has been amended since the date of their
certification (or if there has been any such amendment, attaching a certified
copy thereof); (y) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Company and by the board
of directors or other governing body or Persons of each Guarantor authorizing
the execution, delivery and performance of each Loan Document to which it is a
party; and (z) the incumbency and specimen signature of each officer of the
Company and of each officer or other authorized Person of each Guarantor
executing each Loan Document to which the Company or any Guarantor is a party
and a certification by another officer of the Company and each Guarantor as to
the incumbency and signature of the Secretary or Assistant Secretary of the
Company and each Guarantor.


 


(f)            Insurance.
 On or prior to the Closing Date, the
Administrative Agent shall have received a certificate or certificates of
insurance from an independent insurance broker or brokers or other evidence
confirming the insurance required to be maintained by the Company and its
Domestic Subsidiaries pursuant to Section 6.01 hereof.


 


(g)           Fees and Expenses.
 On or prior to the Closing Date, the
Lenders shall have received all fees that may be payable to them pursuant to
this Agreement and reimbursement of expenses in accordance with Section
10.03(b) hereof.


 


(h)           No Litigation.  Except as set forth on Schedule 4.06,
there shall exist no action, suit, investigation, litigation or proceeding
affecting the Company or any of its Subsidiaries pending or, to the knowledge
of the Company, threatened before any court, governmental agency or arbiter
that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.


 


(i)            Consents and
Approvals.  All
governmental and third party consents and approvals necessary in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall have been obtained (without the imposition of any conditions
that are not reasonably acceptable to the Required Lenders) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable judgment
of the Required Lenders that imposes materially adverse conditions upon the
transactions contemplated hereby.


 


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(j)            No Material Adverse
Effect.  Except as set
forth on Schedule 5.01(j) attached hereto, there shall not have occurred any
Material Adverse Effect in the business, operations, properties or condition
(financial or otherwise) of the Company and its Subsidiaries or the Company and
the Guarantors, taken as a whole, since December 31, 2006.


 


(k)           Existing Indebtedness.  The Administrative Agent shall have
received concurrently with the extension of the initial Loans described herein
evidence that the Existing Indebtedness has been paid in full and that the
agreements giving rise to such Existing Indebtedness have been terminated.


 


(l)            Other Information,
Documentation.  The
Administrative Agent and the Lenders shall have received such other and further
information and documentation as any of them may reasonably require.


 


(m)          Completion of
Proceedings.  All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by the Loan Documents,
shall be reasonably satisfactory in form and substance to the Administrative
Agent, the Lenders and their counsel.


 


SECTION 5.02.          Conditions
to Extensions of Credit.  The obligation of each Lender to make each
Loan hereunder and the obligation of the Issuing Lender to issue, amend, renew
or extend any Letter of Credit, including, without limitation, the initial Loan
and initial Letter of Credit, are further subject to the following conditions
precedent:


 


(a)           Representations and
Warranties.  The
representations and warranties by the Company and each Guarantor pursuant to
this Agreement and the other Loan Documents to which each is a party shall be
true and correct in all material respects on and as of the Borrowing Date or
the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, with the same effect as though such representations and
warranties had been made on and as of such date unless such representation is
as of a specific date, in which case, as of such date.


 


(b)           No Default.  No Default or Event of Default shall
have occurred and be continuing on the Borrowing Date or on the date of
issuance, amendment, renewal or extension of a Letter of Credit or will result
after giving effect to the Loan requested or the requested issuance, amendment,
renewal or extension of a Letter of Credit.


 


(c)           Letter of Credit
Documentation.  With
respect to the issuance, amendment, renewal or extension of any Letter of
Credit, the Issuing Lender shall have received the documents and instruments
requested by the Issuing Lender in accordance with the last sentence of Section
2.03(a) hereof.


 


Each borrowing hereunder and each issuance,
amendment, renewal or extension of a Letter of Credit shall constitute a
representation and warranty of the Company that the statements contained in
clauses (a), (b), and (c) of this Section 5.02 are true and correct on and as
of the Borrowing Date or as of the date of issuance, amendment, renewal or
extension of a Letter of Credit, as applicable, as though such representation
and warranty had been made on and as of such date.


 


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ARTICLE VI

AFFIRMATIVE COVENANTS


 


The Company covenants and
agrees with the Lenders that so long as the Commitments remain in effect, or
any of the principal of or interest on the Notes or any other Obligations
hereunder shall be unpaid it will, and will cause each of its Subsidiaries to:


 


SECTION 6.01.          Existence,
Properties, Insurance.  Except to the extent permitted by Section
7.12 hereof, do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate, partnership, limited liability company,
or other form of organization, as applicable (except as set forth on Schedule
6.01 hereto), existence (other than as expressly permitted herein) and comply,
in all material respects, with all laws applicable to it; at all times
maintain, preserve, protect or renew all trade names, patents, trademarks and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect and preserve all of its property, in each case,
material to its business and keep the same in good repair, working order and
condition (normal wear and tear excepted) and from time to time make, or cause
to be made, all needful and proper repairs, renewals, replacements, betterments
and improvements thereto so that the business carried on in connection
therewith may be properly and advantageously conducted in the ordinary course
at all times in the manner and custom of similar businesses; at all times,
preserve and maintain in full force and effect all rights (including
governmental rights), privileges, qualifications, permits, licenses and
franchises necessary for the normal conduct of its business; and at all times
maintain insurance covering its assets and its business with financially sound
and reputable insurance companies or associations in such amounts and against
such risks (including, without limitation, hazard, business interruption,
public liability and product liability) as are usually carried by companies
engaged in the same or similar business. All casualty insurance policies shall
contain standard lender’s loss payable and mortgagee clauses, and, all
liability and interruption insurance, additional insured clauses issued in
favor of Lenders under which all losses thereunder shall be paid to the Administrative
Agent, as agent for the Lenders, as Lenders interest may appear. All such
policies shall expressly provide that the requisite insurance cannot be altered
or canceled without thirty (30) days prior written notice to Administrative
Agent and shall insure the Administrative Agent and the Lenders notwithstanding
the act or neglect of Company.


 


SECTION 6.02.          Payment of Indebtedness and Taxes.
 (a) Pay all material indebtedness and
obligations, now existing or hereafter arising, as and when due and payable
except where (i) the validity, amount, or timing thereof is being contested in
good faith and by appropriate proceedings, which proceedings shall include good
faith negotiations, and (ii) the Company or any Subsidiary of the Company has
set aside on its books adequate reserves with respect thereto in accordance
with Generally Accepted Accounting Principles, and (iii) the failure to make
such payment pending such contest could not reasonably be expected to have a
Material Adverse Effect, and (b) pay and discharge or cause to be paid and
discharged promptly all taxes, assessments and government charges or levies
imposed upon it or upon its income and profits, or upon any of its property,
real, personal or mixed, or upon any part thereof, as and when due and payable,
as well as all lawful claims for labor, materials and supplies or otherwise
which, if unpaid, might become a lien or charge upon such properties or any
part thereof, except where the failure to make such payment could not
reasonably be expected to have a Material Adverse Effect; provided, however,
that neither the Company nor any Subsidiary of the Company shall be required to
pay and discharge or cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in
good faith by appropriate proceedings, and the Company or such Subsidiary, as
the case may be, shall have set aside on its books adequate reserves determined
in accordance with Generally Accepted Accounting Principles with respect to any
such tax, assessment, charge, levy or claim so contested; further,  provided
that, subject to the foregoing proviso, the Company 


 


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and each Subsidiary of the Company will pay
or cause to be paid all such taxes, assessments, charges, levies or claims upon
the commencement of proceedings to foreclose any lien which has attached as
security therefor.


 


SECTION 6.03.          Financial Statements, Reports, etc.
 Furnish to the Administrative Agent (with sufficient
copies for each Lender):


 


(a)           within the earlier of (i) ninety (90) days of the end of
each fiscal year of the Company or (ii) five (5) days of the date on which the
following is required to be filed with the Securities and Exchange Commission, audited
consolidated financial statements of the Company and its Subsidiaries which
shall include consolidated balance sheets of the Company and its Subsidiaries
as of the end of such fiscal year, together with consolidated income statements
and statements of cash flows for the Company and its Subsidiaries for such
fiscal year and as of and for the prior fiscal year, all prepared in accordance
with Generally Accepted Accounting Principles and accompanied by an opinion
thereon of Ernst & Young, LLP or other nationally recognized independent
certified public accountants reasonably acceptable to the Lenders (the “Auditor”)
which opinion shall not include a going concern or like qualification or
exception or a qualification or exception as to the scope of the audit (except
with respect to any newly acquired Subsidiary), together with the corresponding
consolidating balance sheets of the Company and its Subsidiaries and the
consolidating statements of income for the Company and its Subsidiaries, all
prepared under the supervision of the Chief Financial Officer of the Company in
accordance with Generally Accepted Accounting Principles;


 


(b)           within forty-five (45) days after the end of each of the
first, second and third fiscal quarters of each fiscal year of the Company,
unaudited consolidated and consolidating financial statements of the Company
and its Subsidiaries, which shall include unaudited consolidated and
consolidating balance sheets of the Company and its Subsidiaries as of the end
of each such quarter, together with consolidated and consolidating income
statements and consolidated statements of cash flows of the Company and its
Subsidiaries for each such quarter and for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, all in
reasonable detail stating in comparative form the respective figures for the
corresponding date and period in the previous fiscal year, all prepared by or
under the supervision of the Chief Financial Officer of the Company in accordance
with Generally Accepted Accounting Principles (subject to year-end adjustments
and except for the absence of notes thereto);


 


(c)           (i) a certificate prepared and signed by the Auditor with
each delivery required by clause (a), and (ii) a certificate prepared and
signed by the Chief Financial Officer with each delivery required by clauses
(a) and (b), stating whether the Auditor or Chief Financial Officer, as the
case may be, shall have obtained knowledge of any Default or Event of Default,
together with a certificate of the Chief Financial Officer of the Company
demonstrating that as of the last day of the relevant fiscal year or quarter,
as applicable, the Company was in compliance with the financial condition
covenants set forth in Section 7.13 hereof;


 


(d)           together with delivery of the statements referred to in
clause (a) above, a copy of  the
management letter, if any, prepared by the Auditor, or if such management
letter has not been received by the Company as of such date, promptly upon
receipt thereof;


 


(e)           together with delivery of the statements referred to in
clauses (a) and (b) above, a certificate of the Chief Financial Officer
indicating the “book-to-bill” ratio at the end of such fiscal quarter;


 


H-44

















 


(f)            promptly after filing thereof, copies of all financial
statements and material reports that the Company sends to its shareholders, and
copies of all regular, periodic and special financial information, proxy
materials, reports and other information which the Company shall file with the
Securities and Exchange Commission;


 


(g)           promptly after submission to any government or regulatory
agency, all documents and information (including Forms 8-K) furnished to such
government or regulatory agency other than such documents and information
prepared in the normal course of business and which could not reasonably be
expected to result in a Material Adverse Effect;


 


(h)           promptly upon execution thereof, copies of any amendments
or modifications to any Indenture;


 


(i)            promptly, from time to time, such other information
regarding the operations, business affairs and condition (financial or
otherwise) of the Company or any Subsidiary of the Company as any Lender may
reasonably request.


 


Documents required to be delivered pursuant to clauses (a), (b),
(c)(ii), (e), (f) and (g) of this Section 6.03
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Company’s website on the Internet
at the website address named www.veeco.com; or (ii) on which such documents are
posted on the Company’s behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (A) the Company shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Company
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (B) the Company
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 6.03c)(i) to the Administrative
Agent. Except for such Compliance Certificates, the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Company with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


The Company hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the Issuing Lender
materials and/or information provided by or on behalf of the Company hereunder
(collectively, “Company Materials”) by posting the Company Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Company or its securities) (each, a “Public Lender”). The
Company hereby agrees that (w) all Company Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Company Materials “PUBLIC”, the
Company shall be deemed to have authorized the Administrative Agent, the
Issuing Lender and the Lenders to treat such Company Materials as not
containing any material non-public information with respect to the Company or
its 


 


H-45

















 


securities for purposes of United States Federal and state securities
laws; (y) all Company Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor”; and
(z) the Administrative Agent shall be entitled to treat any Company Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Investor”. In the event that any Lender
desires to be deemed a “public-side Lender” it shall so notify the Company and
the Administrative Agent and, only following such notification, shall the
Company be required to mark Company Material as “PUBLIC”.


 


SECTION 6.04.          Books and Records; Access to
Premises.


 


(a)           Maintain adequate records and proper books of record and
account in which full, true and correct entries will be made in a manner to
enable the preparation of financial statements in accordance with Generally
Accepted Accounting Principles, and which shall reflect all material financial
transactions of the Company and each of its Subsidiaries and material matters
involving the assets and business of the Company and such Subsidiaries.


 


(b)           At any time during normal business hours (and upon
reasonable advance notice so long as no Default or Event of Default has
occurred and is then continuing), permit the Administrative Agent or any Lender
or any agents or representatives thereof to examine and make copies of and
abstracts from the books and records of such information which the
Administrative Agent or any Lender reasonably deems necessary or desirable
(including, without limitation, the financial records of the Company and its
Subsidiaries) and to visit the properties of the Company or any of its
Subsidiaries and to discuss the affairs, finances and accounts of the Company
or any of its Subsidiaries with any of their respective executive officers or
the Company’s independent accountants, provided that the costs thereof shall be
for the account of the Lenders so long as no Default or Event of Default shall
have occurred and is then continuing. The Lenders shall use reasonable efforts
to coordinate any such examinations, copying, visits or discussions.


 


SECTION 6.05.          Notice
of Adverse Change.  Promptly notify the Administrative Agent (and
the Administrative Agent shall promptly notify each Lender) in writing of (a)
any change in the business or the operations of the Company or its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect, and (b)
any information which indicates that any financial statements which are the
subject of any representation contained in this Agreement, or which are
furnished to the Administrative Agent or the Lenders pursuant to this
Agreement, fail to present fairly, as of the date thereof and for the period
covered thereby, the financial condition and results of operations purported to
be presented therein, disclosing the nature thereof.


 


SECTION 6.06.          Notice of Default.  Promptly notify the Administrative Agent (and the Administrative Agent
shall promptly notify each Lender) of any Default or Event of Default which
shall have occurred or the occurrence or existence of any event or circumstance
that in the reasonable judgment of the Company is likely to become a Default or
Event of Default, which notice shall include a written statement as to such occurrence,
specifying the nature thereof and the action (if any) which is proposed to be
taken with respect thereto.


 


SECTION 6.07.          Notice of Litigation and
Investigations.  Promptly notify the Administrative Agent (and
the Administrative Agent shall promptly notify each Lender) of any action,
suit, investigation or proceeding at law or in equity or by or before any
governmental instrumentality or other agency which could reasonably be expected
to have a Material Adverse Effect.


 


H-46

















 


SECTION 6.08.          Notice of Default in Other
Agreements.  Promptly notify the Administrative Agent (and
the Administrative Agent shall promptly notify each Lender) of any default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument to which the Company or
any Subsidiary of the Company is a party which default could reasonably be
expected to have a Material Adverse Effect.


 


SECTION 6.09.          Notice of ERISA Event.  Promptly, and in any event within ten (10) days, after the Company or
any Guarantor knows any of the following, deliver to the Administrative Agent
(and the Administrative Agent shall promptly notify each Lender) a certificate
of the Chief Financial Officer of the Company setting forth details as to the
occurrence and the action, if any, which the Company, any Guarantor or any
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Company, such
Guarantor, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator, with respect thereto: 
that a Reportable Event has occurred with respect to a Plan, that an
accumulated funding deficiency (as defined in Section 412 of the Code) has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a
Single-Employer Plan, that a Plan has been terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA, that one or more Single-Employer
Plans have an Unfunded Current Liability in excess of $1,000,000 in the
aggregate, that involuntary proceedings may be or have been instituted to
terminate a Plan, that a proceeding has been instituted pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan, or that the Company,
any Guarantor  or any ERISA
Affiliate will incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4201 or 4204 of ERISA. Upon request of any
Lender, the Company will deliver to each Lender a complete copy of the annual
report (Form 5500) filed for each Single-Employer Plan.


 


SECTION 6.10.          Notice of Environmental Law
Violations.  Promptly notify the Administrative Agent (and
the Administrative Agent shall promptly notify each Lender) of the receipt of
any notice of an action, suit, or proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending against the Company or any Subsidiary of the Company relating
to any alleged violation of any Environmental Law which could reasonably be
expected to have a Material Adverse Effect.


 


SECTION 6.11.          Compliance with Applicable Laws.
 Comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority,
the breach of which could reasonably be expected to have a Material Adverse
Effect, including, without limitation, the rules and regulations of the Board
of Governors of the Federal Reserve System and the Federal Deposit Insurance
Corporation.


 


SECTION 6.12.          Additional Subsidiaries.  Give the Administrative Agent prompt written notice of the creation,
establishment or acquisition, in any manner, of any Material Subsidiary not
existing as a Material Subsidiary on the Closing Date. Subject to the last
sentence of this Section 6.12, the Company or a Material Domestic Subsidiary,
as appropriate, (a) shall execute a Pledge Agreement, in the form of Exhibit E-1 or Exhibit E-2 hereto (or such other agreement as shall be
required by the Administrative Agent), as applicable, with respect to (i) all
of the shares of capital stock or other ownership interest of each Subsidiary
which is or becomes a Material Domestic Subsidiary and (ii) 65% of the capital
stock or other ownership interest of each First-Tier Subsidiary of such Person
which is or 


 


H-47

















 


becomes a Material Non-Domestic Subsidiary, (b) shall cause each
Subsidiary of such Person which is a Material Domestic Subsidiary to execute
amendments with respect to the Guaranty and the Security Agreement, pursuant to
which such Subsidiary becomes a “Guarantor” and “Grantor” under the Guaranty
and the Security Agreement, respectively, (c) shall deliver an opinion of
counsel, (i) simultaneously with the delivery of any Pledge Agreement executed
pursuant to clause (a)(i) above and (ii) within 90 days of the delivery of any
Pledge Agreement executed pursuant to clause (a)(ii) above, that such Pledge
Agreement is valid and enforceable in the jurisdiction of formation of such
Material Domestic Subsidiary and Material Non-Domestic Subsidiary, as the case
may be, provided that if such opinion, in connection with the delivery of any
Pledge Agreement executed pursuant to clause (a)(ii) above, cannot be provided,
the Company or such Material Non-Domestic Subsidiary, as appropriate, shall
execute any additional documents that may be required in order to perfect the
lien granted by such Pledge Agreement in such jurisdiction and to enable such
counsel to deliver an acceptable opinion with respect thereto and (d) with
respect to the pledge of capital stock or other ownership interest of any
Material Domestic Subsidiary that is a “certificated security” within the
meaning of Section 8-102(a)(4) of the Uniform Commercial Code, deliver
certificates and powers with respect to such interests duly endorsed in blank,
and, in the event of uncertificated interests, to the extent the Administrative
Agent’s Lien therein is not already perfected by the filing of the UCC-1
financing statements referred to in Section 5.01(c) hereof, additional UCC-1
financing statements; in the case of both (a), (b) and (d), within ten (10)
Business Days after the creation, establishment or acquisition of such Material
Subsidiary and in connection therewith shall deliver or cause to be delivered
such proof of corporate action, incumbency of officers and other documents as
are consistent with those delivered as to each Subsidiary pursuant to Section
5.01 hereof on the Closing Date, or as the Administrative Agent may request,
each in form and substance satisfactory to the Administrative Agent. In no
event shall the Company be required to pledge any of the assets of a Subsidiary
of the Company that is a controlled foreign corporation, as defined in Section
957(a) of the Code, including, but not limited to the stock of any Subsidiary
of the Company held directly or indirectly by any such Subsidiary.


 


SECTION 6.13.          Environmental Laws.  Comply in all material respects with the requirements of all applicable
Environmental Laws, provide to the Lenders all documentation in connection with
such compliance that any of the Lenders may reasonably request, and defend,
indemnify, and hold harmless the Administrative Agent and each Lender and their
respective employees, agents, officers, and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs, or
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way related to, (a) the presence, disposal, or
release of any Hazardous Materials on any property at any time owned or
occupied by the Company or any Subsidiary of the Company, (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials, (c) any lawsuit brought or
threatened, settlement reached, or government order relating to such Hazardous
Materials, and/or (d) any violation of applicable Environmental Laws,
including, without limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs, and litigation expenses.


 


SECTION 6.14.          Non-Material Subsidiaries.  In the event that the assets or revenues of the Non-Material
Subsidiaries, taken as a whole, shall, at any time, exceed twenty percent (20%)
of Consolidated Total Assets or Consolidated Total Revenues, then, at such time
one or more Non-Material Subsidiaries, as selected by the Company, shall be
deemed Material Subsidiaries so that the Non-Material Subsidiaries, taken as a
whole, shall no longer, account for more than twenty percent of Consolidated
Total Assets or Consolidated Total Revenues. In the event that any Non-Material
Subsidiary shall be deemed a Material Subsidiary, such Subsidiary or such
Subsidiary’s parent shall comply with the relevant provisions of Section 6.12
hereof.


 


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SECTION 6.15.          Foreign Opinions of Counsel.  Within 60 days of the Closing Date, the Company shall deliver to the
Administrative Agent an acknowledgment with respect to each opinion of counsel
previously delivered to the Administrative Agent for each Foreign Pledge
Agreement delivered on the Prior Closing Date with respect to any Non-Domestic
Subsidiary which, as of the Closing Date, is a Material Non-Domestic
Subsidiary, that such Foreign Pledge Agreement remains valid and enforceable in
the jurisdiction of formation of the applicable Material Non-Domestic
Subsidiary whose capital stock or other ownership interest was pledged pursuant
thereto, notwithstanding the execution and delivery of this Credit Agreement.


 


ARTICLE VII

NEGATIVE COVENANTS


 


The Company covenants and
agrees with the Lenders that so long as the Commitments remain in effect or any
of the principal of or interest on any Note or any other Obligations hereunder
shall be unpaid, it will not, and will not cause or permit any of its  Subsidiaries, directly or indirectly, to:


 


SECTION 7.01.          Indebtedness.  Incur, create, assume or suffer to exist or
otherwise become liable in respect of any Indebtedness, other than:


 


(a)           Indebtedness incurred prior to the date hereof as
described in Schedule 7.01 attached hereto and any refinancing of such
Indebtedness, provided that the aggregate principal amount of such Indebtedness
is not increased (unless such increase is otherwise permitted under Sections
7.01(b) through 7.01(h) hereof;


 


(b)           Indebtedness to the Lenders under this Agreement, the
Notes or any other Loan Document;


 


(c)           Indebtedness for trade payables incurred in the ordinary
course of business; provided such payables shall be paid or discharged when
due;


 


(d)           Indebtedness consisting of guarantees permitted pursuant
to Section 7.03 hereof;


 


(e)           Subordinated Indebtedness, including without limitation,
indebtedness evidenced by the Subordinated Notes, provided that such
Subordinated Indebtedness shall not exceed $300,000,000, in the aggregate, and provided
further, that no Default or Event of Default shall have occurred and be continuing
at the time of incurrence thereof or would occur after giving effect to the
incurrence of such Subordinated Indebtedness;


 


(f)            Indebtedness secured by purchase money liens as permitted
under Section 7.02(i) hereof and Indebtedness arising under Capital Leases;
provided that the aggregate amount of such Indebtedness shall not exceed
$15,000,000 during any fiscal year of the Company, or $30,000,000 at any one
time outstanding, and, further, provided no Default or Event of Default shall
have occurred and be continuing at the time of incurrence thereof or would
occur after giving effect to the incurrence of such Indebtedness;


 


(g)           Indebtedness with respect to Hedging Agreements entered
into by the Company, provided that the aggregate net liabilities under all
Hedging Agreements shall not exceed $5,000,000 at 


 


H-49

















 


the time of incurrence thereof, and provided
further, that such Hedging Agreements shall be entered into only in the
ordinary course of its business and not for speculative purposes;


 


(h)           Indebtedness arising under or with respect to foreign
exchange contracts entered into by the Company or any of its Subsidiaries in
the ordinary course of its business and not for speculative purposes for the
purchase or sale of foreign currency and with respect to which the net daily
settlement amount of any particular date, shall not exceed $25,000,000, in the
aggregate;


 


(i)            Indebtedness for taxes, assessments or other governmental
charges or levies not yet delinquent or which are being contested in good faith
by appropriate proceedings; provided, however, that adequate reserves with
respect thereto are maintained on the books of the Company or any Subsidiary of
the Company in accordance with Generally Accepted Accounting Principles;


 


(j)            Indebtedness owing by (i) the Company to any of its
Material Subsidiaries or (ii) any Material Subsidiary of the Company to the
Company or any other Material Subsidiary of the Company;


 


(k)           Indebtedness owing by (i) the Company to any of its
Non-Material Subsidiaries or (ii) any Non-Material Subsidiary of the Company to
the Company or any other Non-Material Subsidiary of the Company, provided such
Indebtedness shall not exceed $25,000,000, in the aggregate;


 


(l)            unsecured Indebtedness of Non-Domestic Subsidiaries
incurred in connection with performance standby letters of credit, bank
guarantees, bonds or similar arrangements, incurred in the ordinary course of
its business, the Dollar Equivalent Amount of which shall not exceed $10,000,000
at any time;


 


(m)          Indebtedness assumed in connection with any Permitted
Acquisition, provided that such Indebtedness is secured only by those liens
permitted under Section 7.02(h) hereof,


 


(n)           additional Indebtedness assumed in connection with any
Permitted Acquisition (not described in Section 7.01(m) or (o) hereof), not to
exceed $5,000,000, in the aggregate, provided that such Indebtedness is
unsecured and shall be terminated within six months after the closing date of
such Permitted Acquisition and, provided further that, no Default or Event of
Default shall have occurred and be continuing or would occur after giving
effect to the incurrence of such Indebtedness;


 


(o)           additional Indebtedness incurred in connection with any
Permitted Acquisition (not described in Section 7.01(m) or (n) hereof), not to
exceed $5,000,000, in the aggregate, provided that such Indebtedness is
unsecured and shall solely consist of promissory notes issued by the Company or
the Subsidiary of the Company, as applicable, in favor of the seller with
respect to such Permitted Acquisition and, provided further that, no Default or
Event of Default shall have occurred and be continuing or would occur after
giving effect to the incurrence of such Indebtedness; and


 


(p)           secured Indebtedness of Non-Domestic Subsidiaries, not to
exceed $5,000,000, in the aggregate; and


 


(q)           additional unsecured Indebtedness of the Company and its
Subsidiaries (not described in Section 7.01 (a) through (p) hereof), not to
exceed $5,000,000, in the aggregate.


 


SECTION 7.02.          Liens.  Incur, create, make, assume or suffer to exist any Lien on any of 


 


H-50

















 


their respective properties
or assets, now or hereafter owned, other than:


 


(a)           Liens existing on the date hereof (which are not described
in Sections 7.02(b) through 7.02(i) hereof) as set forth on Schedule 7.02
attached hereto, securing Indebtedness outstanding on such date or incurred in
connection with the extension, renewal or refinancing of the Indebtedness
secured by such existing Liens; provided that any extension, renewal or
replacement Lien shall be limited to the property encumbered by the existing
Lien and the principal amount of the Indebtedness being extended, renewed or
refinanced does not increase;


 


(b)           Liens securing Indebtedness described in Section 7.01(i)
hereof, provided that no notice of lien has been filed or recorded under the
Code;


 


(c)           carriers’, warehousemens’, mechanics’, suppliers’ or other
like Liens arising in the ordinary course of business and not overdue for a
period of more than sixty (60) days or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject thereto;


 


(d)           Liens incurred or deposits to secure (i) the
non-delinquent performance of tenders, bids, trade contracts (other than for
borrowed money), leases and statutory obligations, (ii) contingent obligations
on surety, performance and appeal bonds, and (iii) other non-delinquent
obligations of similar nature; in each case, incurred in the ordinary course of
business;


 


(e)           any attachment, judgment or similar Lien arising in
connection with any court or governmental proceeding, provided that the
execution or other enforcement of such Lien is effectively stayed within thirty
(30) days, provided, further that an Event of Default shall not be deemed to
occur solely by reason of the continuance of such Liens beyond such thirty (30)
day period so long as the aggregate amount secured by all such continuing Liens
does not exceed $500,000;


 


(f)            easements, rights of way, restrictions and other similar
charges or encumbrances incurred in the ordinary course of business which, in
the aggregate, do not interfere in any material respect with the occupation,
use and enjoyment by the Company or any Subsidiary of the Company of the
property or assets encumbered thereby in the normal course of their respective
business or materially impair the value of the property subject thereto;


 


(g)           deposits or pledges required in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other social security laws;


 


(h)           Liens upon assets acquired in Permitted Acquisitions,
provided that such Liens encumber only (i) specific equipment or real property;
or (ii) other assets acquired in such Permitted Acquisition, provided that
Liens on such other assets do not secure more than $5,000,000 of Indebtedness
in the aggregate and provided further that such Liens on such other assets are
released within six months after the closing date of such Permitted
Acquisition;


 


(i)            purchase money Liens on any property acquired or held by
the Company or its Subsidiaries in the ordinary course of business, securing
Indebtedness permitted pursuant to Section 7.01(f) hereof; provided in each
case (i) no Default or Event of Default shall have occurred and be continuing
at the time such Lien is created or shall occur after giving effect to such
Lien, (ii) such purchase money lien does not secure more than 100% of the
purchase price of, and encumbers only, the property acquired, and (iii) such
purchase money Lien does not secure any Indebtedness other than in 


 


H-51

















 


respect of the purchase price of the asset
acquired;


 


(j)            Liens arising in connection with Capital Leases permitted
under Section 7.01(f) hereof; provided, that no such Lien shall extend
to or cover any assets other than the assets subject to such Capital Lease;


 


(k)           Liens arising from precautionary Uniform Commercial Code
financing statements filed solely for notice purposes in respect of operating
leases, consignments and similar arrangements entered into by the Company or
any of its Subsidiaries in the ordinary course of business;


 


(l)            statutory and common law landlord’s liens under leases;


 


(m)          Liens in favor of banks or other depository institutions
upon property or assets arising under the common law or pursuant to contractual
rights of set off;


 


(n)           Liens securing Indebtedness described in Section 7.01(p)
hereof, provided that such Liens extend only to assets of the applicable
Non-Domestic Subsidiary; and


 


(o)           Liens granted to the Administrative Agent for the benefit
of the Lenders pursuant to the Security Agreement.


 


SECTION 7.03.          Guaranties.  Guarantee, endorse, become surety for, or otherwise in any way become
or be responsible for the Indebtedness or obligations of any Person, whether by
agreement to maintain working capital or equity capital or otherwise maintain
the net worth or solvency of any Person or by agreement to purchase the
Indebtedness of any other Person, or agreement for the furnishing of funds,
directly or indirectly, through the purchase of goods, supplies or services for
the purpose of discharging the Indebtedness of any other Person or otherwise,
or enter into or be a party to any contract for the purchase of merchandise,
materials, supplies or other property if such contract provides that payment
for such merchandise, materials, supplies or other property shall be made
regardless of whether delivery of such merchandise, supplies or other property
is ever made or tendered except:


 


(a)           guaranties executed or committed prior to the date hereof
as described on Schedule 7.03 attached hereto including any renewals or
extension thereof provided that such renewals or extension do not increase the
maximum exposure pursuant to the guaranty (unless such increase is permitted by
Section 7.03(d) hereof);


 


(b)           endorsements of negotiable instruments for collection or
deposit in the ordinary course of business;


 


(c)           guaranties of any Indebtedness under this Agreement or any
other Loan Document; and


 


(d)           guaranties by the Company of any Indebtedness permitted
pursuant to Section 7.01 hereof of any Subsidiary of the Company or guaranties
by any Subsidiary of the Company of such Indebtedness of the Company or any
other Subsidiary.


 


SECTION 7.04.          Sale of Assets.  Sell, lease, transfer or otherwise dispose of their respective
properties and assets, whether or not pursuant to an order of a federal agency
or commission, except for (a) the sale of inventory disposed of in the ordinary
course of business, or (b)  so long as no



 


H-52

















 


Event of Default shall have occurred and is continuing or could occur
as a result thereof, (i) the sale or other disposition of properties or assets
no longer used or useful in the conduct of their respective businesses, and
(ii) the sale or disposition of assets in arms length transactions provided
that the net proceeds of any such sale shall not exceed $10,000,000, in any
fiscal year, or $20,000,000, in the aggregate.


 


SECTION 7.05.          Sales of Receivables.  Sell, transfer, discount or otherwise dispose of notes, accounts
receivable or other obligations owing to the Company or any Subsidiary of the
Company, with or without recourse, except for collection in the ordinary course
of business.


 


SECTION 7.06.          Loans and Investments.  Make or commit to make any advance, loan, extension of credit or
capital contribution to, or purchase or hold beneficially any stock or other
securities, or evidence of Indebtedness, of, purchase or acquire all or a
substantial part of the assets of, or make or permit to exist any interest
whatsoever in, any other Person except for (a) Eligible Investments; (b) trade
credit to customers, provided that such credit is extended in the ordinary
course of the business of the Company or such Subsidiary or if such credit is
not extended in the ordinary course, such credit does not exceed $10,000,000,
in the aggregate, at any time; (c) so long as no Default or Event of Default
shall have occurred and is then continuing, Permitted Equity Investments by the
Company or any Subsidiary of the Company in any Person which is not a
Subsidiary of the Company and loans by the Company or any Subsidiary to such
Person in connection with such Permitted Equity Investment, provided that such
non-subsidiary entities are engaged in a business which is related to the
business of the Company, and provided further that aggregate Permitted Equity
Investment Costs incurred in connection with all Permitted Equity Investments
shall not be in excess of $20,000,000; (d) Permitted Acquisitions by the
Company and any of its Subsidiaries; (e) distributions received by the Company
solely as a result of the involuntary conversion of a contractual right to a
stock or other investment; (f) investments, loans or advances by the Company in
any of its Subsidiaries or by any Subsidiary of the Company in the Company or
in any other Subsidiary of the Company; and (g) so long as no Default or Event
of Default shall have occurred and is then continuing or would result
therefrom, repurchases by the Company of the Subordinated Notes, provided that
the Company shall notify the Lenders promptly following completion of any such
repurchase.


 


SECTION 7.07.          Nature of Business.  Fail to carry on its business in substantially the same manner and in
substantially the same fields as such business is carried on and maintained as
of the Closing Date.


 


SECTION 7.08.          Sale and Leaseback.  Enter into any arrangement, directly or indirectly, with any Person
whereby it shall sell or transfer any personal property used or useful in its
business, whether now owned or hereafter acquired, if at the time of such sale
or disposition it intends to lease or otherwise acquire the right to use or
possess (except by purchase) such property or like property for a substantially
similar purpose.


 


SECTION 7.09.          Federal
Reserve Regulations.  Permit any Loan or the proceeds of any Loan
or any other extension of credit hereunder to be used for any purpose which
violates or is inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.


 


SECTION 7.10.          Accounting Policies and Procedures.  Permit any change in the accounting policies
and procedures of the Company or any of its Subsidiaries, including a change in
fiscal year, provided, however, that any policy or procedure required to be
changed by the Financial Accounting Standards Board (or other board or
committee thereof) in order to comply with Generally Accepted 


 


H-53

















 


Accounting Principles may be so changed; provided further, that any
changes to the accounting practices and procedures of a Subsidiary acquired in
a Permitted Acquisition shall be permitted only to the extent necessary or
appropriate to conform the accounting practices and procedures of such
Subsidiary with those of the Company and its other Subsidiaries.


 


SECTION 7.11.          Hazardous
Materials.  Cause or permit any of its properties or
assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce or process Hazardous Materials, except in
compliance in all material respects, with all applicable federal, state and
local laws or regulations, or cause or permit, as a result of any intentional
or negligent act or omission on the part of the Company or any of its
Subsidiaries, a release of Hazardous Materials onto such property or asset or
onto any other property, except in compliance in all material respects with
such laws and regulations.


 


SECTION 7.12.          Limitations on Fundamental Changes,
Limitations on Consideration; Amendments of Organizational Documents.  Except as permitted by Section 7.04 hereof, (a) merge or consolidate
with, or sell, assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now or hereafter acquired) to, any Person, or (b) except with
respect to a Permitted Acquisition, and except as set forth on Schedule 7.12
hereto, merge or consolidate with or acquire all of the stock or all or
substantially all of the assets or the business of any Person or liquidate,
wind up or dissolve or suffer any liquidation or dissolution, or (c) enter into
or agree to any amendment, modification or waiver of any term or condition of
its respective organizational documents which would adversely affect the rights
and remedies of the Administrative Agent or the Lenders or would otherwise have
a Material Adverse Effect. Notwithstanding the foregoing, (a) any Domestic
Subsidiary may merge with and  into the
Company or any Domestic Subsidiary, (b) any Non-Domestic Subsidiary may merge
with and into another Non-Domestic Subsidiary, provided, that no
Non-Domestic Subsidiary with respect to which the Administrative Agent has
received a pledge of stock shall merge with and into another Non-Domestic
Subsidiary if 65% of the shares or other ownership interests of the surviving
Subsidiary cannot be pledged to the Administrative Agent for the benefit of the
Lenders.


 


SECTION 7.13.          Financial Condition Covenants.


 


(a)           Consolidated Senior Funded Debt to Consolidated EBITA.
 Permit the ratio of Consolidated Senior
Funded Debt to Consolidated EBITA to be greater than 3.00:1.00.


 


(b)           Consolidated Quick Ratio.  Permit the Consolidated Quick Ratio to be less
than 1.00:1.00.


 


(c)           Consolidated Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage
Ratio to be less than 1.25:1.00.


 


(d)           Pre-tax Loss.  Permit a pre-tax loss greater than (i)
$6,000,000, to exist for the fiscal quarter ending September 30, 2007, or (ii)
$5,000,000, on an aggregate basis, to exist during any two consecutive fiscal
quarters of the Company, commencing with the two fiscal quarters ending
December 31, 2007.


 


Compliance with all of the
financial covenants in this Section 7.13 may be determined by reference to the
consolidated financial statements of the Company delivered to the Administrative
Agent in accordance with Section 6.03 hereof. All financial covenants will be
applicable at all times and tested 


 


H-54

















 


quarterly, as of the last day of each fiscal
quarter.


 


SECTION 7.14.          Subordinated Debt.  (a) Except as permitted in Section 7.06(g) hereof, directly or
indirectly prepay, defease, purchase or redeem any Subordinated Debt, or (b)
amend, supplement or otherwise modify any of the provisions governing such
subordination in any way which would materially affect the interests of the
Lenders, without the prior written consent of the Required Lenders.


 


SECTION 7.15.          Dividends.  Declare any cash dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of stock of the Company whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash, securities or property or in obligations of the
Company or in any combination thereof, or permit any Affiliate to make any
payment on account of, or purchase or otherwise acquire, any shares of any
class of the stock of the Company from any Person, except for (a) so long as no
Default or Event of Default shall have occurred and is then continuing or could
occur as a result thereof, repurchase by the Company of its common stock and
dividends and distributions by the Company to its shareholders provided that
the aggregate amount of such permitted repurchases and dividends and
distributions does not exceed $10,000,000, in the aggregate, during the term of
this Agreement and (b) dividends or distributions paid by any Subsidiary of the
Company to its immediate parent.


 


SECTION 7.16.          Transactions
with Affiliates.  Enter into any transaction, including,
without limitation, the purchase, sale, or exchange of property or the
rendering of any service, with any Affiliate, except in the ordinary course of
and pursuant to the reasonable requirements of the Company’s or any of its
Subsidiaries’ business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than they would obtain in a comparable
arms-length transaction with a Person not an Affiliate.


 


SECTION 7.17.          Negative Pledge.  Enter into any agreement with any Person other than the Lenders
pursuant to this Agreement or any of the other Loan Documents which prohibits
or limits the ability of the Company or any of its Subsidiaries to create,
incur, assume or suffer to exist any Lien upon its property, assets or
revenues, whether now owned or hereafter acquired, except to the extent that
any such agreement relates only to specific property that is the subject of a
Permitted Lien.


 


SECTION 7.18.          Indentures.  Amend or modify any of the
provisions of any Indenture without the prior consent of the Required Lenders
other than amendments or modifications which do not adversely affect the
Lenders.


 


ARTICLE VIII

EVENTS OF DEFAULT


 


SECTION 8.01.          Events of Default.  In the case of the happening of any
of the following events (each an “Event of Default”):


 


(a)           failure to pay (i) the principal of any Loan or any
reimbursement obligations with respect to a drawing under any Letter of Credit
as and when due and payable, or (ii) interest on any Loan or any fees or other
amounts under this Agreement, as and when due and payable and, in the case of
subclause (ii) only, such failure shall continue unremedied for a period of two
(2) Business Days;


 


H-55

















 


(b)           any representation or warranty made or deemed made in this
Agreement or any other Loan Document shall prove to be false or misleading in
any material respect when made or given or when deemed made or given;


 


(c)           any report, certificate, financial statement or other
instrument furnished in connection with this Agreement or any other Loan
Document or the extensions of credit hereunder, shall prove to be false or
misleading in any material respect when furnished, made or given or when deemed
made or given;


 


(d)           default shall be made in the due observance or performance
of any covenant, condition or agreement of the Company or any Subsidiary of the
Company to be performed (i) pursuant to Article 6 of this Agreement (other than
Section 6.03(a), (b), (c), or (d), Section 6.04(b) and Section 6.06 hereof)
and, in the case of this subclause (i) only, such default shall continue
unremedied for a period of thirty (30) consecutive days or (ii) pursuant to any
other provision of this Agreement or any other Loan Document that is not
specifically addressed in Sections 8.01(a), (b), (c) or (d)(i) hereof;


 


(e)           default in the performance or compliance in respect of any
agreement or condition relating to any Indebtedness of the Company or any
Guarantor in excess of $5,000,000 individually or in the aggregate (other than
the Notes), if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder or obligee thereof (or a trustee on behalf
of such holder or obligee) to cause such Indebtedness to become due prior to
the stated maturity thereof, or any such Indebtedness shall not be paid when
due (beyond any applicable grace period);


 


(f)            the Company or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other federal or state bankruptcy,
insolvency or similar law, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding or the
filing of any such petition, (iii) apply for or consent to the employment of a
receiver, trustee, custodian, sequestrator or similar official for the Company
or any Material Subsidiary or for a substantial part of its property; (iv) file
an answer admitting the material allegations of a petition filed against it in
such proceeding, (v) make a general assignment for the benefit of creditors, or
(vi) take corporate action for the purpose of effecting any of the foregoing;
or the Company or any Material Subsidiary becomes unable or admits in writing
its inability or fails generally to pay its debts as they become due;


 


(g)           an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Company or any Material Subsidiary or of a
substantial part of their respective property, under Title 11 of the United
States Code or any other federal or state bankruptcy, insolvency or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or
similar official for the Company or any Subsidiary of the Company or for a
substantial part of their property, or (iii) the winding-up or liquidation of
the Company or any Material Subsidiary and such proceeding or petition shall
continue undismissed for sixty (60) days or an order or decree approving or
ordering any of the foregoing shall continue unstayed and in effect for sixty
(60) days;


 


(h)           one or more orders, judgments or decrees for the payment
of money in excess of $5,000,000 in the aggregate shall be rendered against the
Company or any Subsidiary of the Company which is not covered by insurance and
the same shall not have been paid in accordance with such judgment, order or
decree or settlement and either (i) an enforcement proceeding shall have been 


 


H-56

















 


commenced by any creditor upon such judgment,
order or decree, or (ii) there shall have been a period of sixty (60) days
during which a stay of enforcement of such judgment, order or decree, by reason
of pending appeal or otherwise, was not in effect;


 


(i)            any Plan shall fail to maintain the minimum funding
standard required under Section 412 of the Code for any Plan year or part
thereof or a waiver of such standard or extension of any amortization period is
applied for or granted under Section 412 of the Code, any Plan is terminated by
the Company, any Subsidiary of the Company or any ERISA Affiliate or the subject
of termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a Reportable Event shall have occurred with respect to a Plan or the
Company, any Subsidiary of the Company, or any ERISA Affiliate shall have
incurred a liability to or on account of a Plan under Section 515, 4062, 4063,
4201 or 4204 of ERISA, and there shall result from any such event or events the
imposition of a lien upon the assets of the Company or any Subsidiary of the
Company, the granting of a security interest on such assets, or a liability to
the PBGC or a Plan or a trustee appointed under ERISA or a penalty under
Section 4971 of the Code, and in each case, such event or condition, together
with all such events or conditions, if any, could reasonably be expected to
result in liability of the Company and the Subsidiaries of the Company in an
aggregate amount exceeding $1,000,000;


 


(j)            any material provision of any Loan Document shall for any
reason cease to be in full force and effect in accordance with its terms or the
Company or any Guarantor shall so assert in writing;


 


(k)                                  a Change of Control shall have occurred;


 


(l)            the Company shall designate any Indebtedness other than
Indebtedness arising under the Credit Agreement as “Designated Senior
Indebtedness” (as that term is defined in each Indenture) without the prior
written approval of the Required Lenders; or


 


(m)          an Event of Default (as defined in the Indenture) shall
have occurred and be continuing;


 


then,
at any time thereafter during the continuance of any such event, the
Administrative Agent may, and, upon the request of the Required Lenders, shall,
by written or telephonic notice to the Company, take either or both of the
following actions, at the same or different times, (a) terminate the Commitments
and (b) declare (i) the Notes, both as to principal and interest, (ii) an
amount equal to the Aggregate Letters of Credit Outstanding and (iii) all other
Obligations, to be forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes to the contrary notwithstanding; provided,
however, that if an event specified in Section 8.01(f) or (g) hereof
shall have occurred, the Commitments shall automatically terminate and
interest, principal and amounts referred to in the preceding clauses (i), (ii)
and (iii) shall be immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are expressly waived, anything
contained herein or in the Notes to the contrary notwithstanding. With respect
to all Letters of Credit that shall not have expired or presentment for honor
shall not have occurred, the Company shall provide the Administrative Agent
with Cash Collateral in an amount equal to the aggregate undrawn amount of such
Letters of Credit. Such Cash Collateral shall be applied by the Administrative
Agent to reimburse Issuing Lender for drawings under Letters of Credit for
which the Issuing Lender has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Company at such time or, if the maturity of the Loans has been 


 


H-57

















 


accelerated,
be applied to satisfy other Obligations, with any amount remaining after such
satisfactions to be returned to the Company or paid to such other party as may
legally be entitled to the same.


 


ARTICLE IX

THE ADMINISTRATIVE AGENT


 


SECTION 9.01.          Appointment, Powers and Immunities.  Each Lender hereby irrevocably appoints and
authorizes the Administrative Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents together with such other powers as are reasonably incidental thereto.
The Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents and shall
not be a trustee for any Lender, nor is the Administrative Agent acting in a
fiduciary capacity of any kind under this Agreement or the other Loan Documents
or in respect thereof or in respect of any Lender. The Administrative Agent
shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or the other Loan
Documents, in any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or the other Loan Documents,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or any other document
referred to or provided for herein or therein or for the collectibility of the
Loans or for the validity or effectiveness of any assignment, mortgage, pledge,
security agreement, financing statement, document or instrument, or for the
filing, recording, re-filing, continuing or re-recording of any thereof or for
any failure by the Company or any Guarantor to perform any of its obligations
hereunder or under the other Loan Documents. The Administrative Agent may take
all actions by itself and/or it may employ agents and attorneys-in-fact, and
shall not be responsible to any Lender, except as to money or the securities
received by it or its authorized agents, for the negligence or misconduct of
itself or its employees or of any such agents or attorneys-in-fact, if such
agents or attorneys-in-fact are selected by it with reasonable care. Neither
the Administrative Agent nor any of its directors, officers, employees or
agents shall be liable or responsible for any action taken or omitted to be
taken by it or them hereunder or under the other Loan Documents or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct.


 


SECTION 9.02.          Reliance by Administrative Agent.
 The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability to any Lender for relying upon,
any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by this Agreement or the other Loan
Documents, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under the other Loan
Documents in accordance with instructions signed by the Required Lenders, or
such other number of Lenders as is specified in Section 10.04 hereof, and such
instructions of the Required Lenders or other number of Lenders as aforesaid
and any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders.


 


SECTION 9.03.          Events of Default.  The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default or Event of Default (other than the non-payment of
principal of or interest on the Loans, of amounts payable in respect of draws
under Letters of Credit, or of fees to the extent the same are required to be
paid to the Administrative Agent for the account of the Lenders), unless the
Administrative Agent has received notice from a Lender or the Company
specifying


 


H-58
















 


such Default or Event of Default and stating
that such notice is a “Notice of Default”. In the event that the Administrative
Agent receives such a notice of the occurrence of a Default or Event of
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 9.07 hereof) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Lenders, except as otherwise provided in Section 10.04
hereof; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but is not obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Lenders.


 


SECTION 9.04.          Rights as a Lender.  With respect to its Commitment and the Loans made by it, the Person
which is the Administrative Agent, in its capacity as a Lender hereunder, shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Administrative Agent, and the term
“Lender” or “Lenders” shall, unless the context otherwise indicates, include
each entity which is the Administrative Agent in its individual capacity. The
Person which is the Administrative Agent and its Affiliates may (without having
to account therefor to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Company or its Affiliates, as if it were not acting as the Administrative
Agent, and, except to the extent otherwise herein specifically set forth, the
Administrative Agent may accept fees and other consideration from the Company
or its Affiliates, for services in connection with this Agreement or any of the
other Loan Documents or otherwise without having to account for the same to the
Lenders.


 


SECTION 9.05.          Indemnification.  The Lenders shall indemnify the
Administrative Agent (to the extent not reimbursed by the Company under Section
10.03 hereof), ratably in accordance with the aggregate outstanding principal
amount of the Loans made by the Lenders (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as the Administrative Agent in any way
relating to or arising out of this Agreement or any of the other Loan Documents
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby and thereby (including, without limitation,
the costs and expenses which the Company is obligated to pay under Section
10.03 hereof or under the applicable provisions of any other Loan Document) or
the enforcement of any of the terms hereof or of any other Loan Document,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the
Administrative Agent.


 


SECTION 9.06.          Non-Reliance
on Administrative Agent and Other Lenders.  Each Lender agrees that it has, independently and without reliance on
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in taking
or not taking action under this Agreement or under the other Loan Documents. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or the other Loan
Documents or any other document referred to or provided for herein or therein
or to inspect the properties or books of the Company. Except for notices,
reports and other documents and information expressly required to be furnished
to the Lenders by the Administrative Agent hereunder or under the other Loan
Documents, or furnished to the Administrative Agent with counterparts or copies
for the Lenders, the Administrative Agent shall not have any duty or ability to
provide any


 


H-59

















 


Lender with any credit or other information
concerning the affairs, financial condition or business of the Company, which
may come into the possession of  the
Administrative Agent or any of its Affiliates.


 


SECTION 9.07.          Failure to Act.   Except
for action expressly required of the Administrative Agent hereunder or under
any other Loan Documents, the Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder or thereunder unless it shall
be indemnified to its satisfaction by the Lenders against any and all liability
(except gross negligence and willful misconduct) and expense which may be
incurred by it by reason of taking or continuing to take any such action.


 


SECTION 9.08.          Resignation of the Administrative
Agent.  Subject to the appointment and acceptance of
a successor Administrative Agent as provided in this Section 9.08, the
Administrative Agent may resign at any time by notifying the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the
right,  with the approval of the Company
provided no Default or Event of Default shall have occurred and then be
continuing, such approval not to be unreasonably withheld, delayed or
conditioned, to appoint a successor to the Administrative Agent. If no
successor shall have been so appointed by the Required Lenders (with the
approval of the Company) and shall have accepted such appointment within 30
days after the resigning Administrative Agent gives notice of its resignation,
then the resigning Administrative Agent may, on behalf of the Lenders, appoint
a successor Administrative Agent which shall be a bank of similar standing with
an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent, and the resigning
Administrative Agent shall be discharged from its duties and obligations
hereunder as of such date. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 10.03 hereof shall continue in effect for the benefit of such
resigning Administrative Agent in respect of any actions taken or omitted to be
taken by it while it was acting as the Administrative Agent.


 


SECTION 9.09.          Sharing of Collateral and Payments.  In the event that at any time any Lender
shall obtain payment in respect of the Obligations, or receive any collateral
in respect thereof, whether voluntarily or involuntarily, through the exercise
of a right of banker’s lien, set-off or counterclaim against the Company or
otherwise, which results in it receiving more than its pro rata share of the
aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis), then such Lender  shall be deemed
to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata;  provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from the Lender which received the proportionate over-payment, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Company agrees, to the
extent it may do so under applicable law, that each Lender so purchasing a
portion of another Lender’s Loan or participation in any Letter of Credit may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.


 


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ARTICLE X


MISCELLANEOUS


 


SECTION 10.01.        Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
telecopy), and unless otherwise expressly provided herein, shall be
conclusively deemed to have been received by a party hereto and to be effective
on the day on which delivered by hand to such party or one Business Day after
being sent by overnight mail to the address set forth below, or, in the case of
telecopy notice, when acknowledged as received, or if sent by registered or
certified mail, three (3) Business Days after the day on which mailed in the
United States, addressed to such party at such address:


 


H-61

















 


 


(a)           if to the Administrative Agent, at:


 


HSBC Bank USA, National
Association


534 Broad Hollow Road


Melville, New York 11747


Attention:                                         Christopher J. Mendelsohn or Relationship
Manager - Veeco Instruments Inc.


Telecopy:                                           (631) 752-4340


E-mail:                    chris.mendelsohn@us.hsbc.com


 


With a copy to:


 


Farrell Fritz, P.C.


1320 Reckson Plaza


Uniondale, New York
11556-1320


Attention:                                         Robert C. Creighton, Esq.


Telecopy:                                           (516) 227-0777


E-Mail:                   rcreighton@farrellfritz.com


 


(b)           if to the Company, at:


 


Veeco Instruments Inc.


100
Sunnyside Boulevard, Suite B


Woodbury,
New York  11797


Attention:                                         Chief Financial Officer


Telecopy:                                           (516) 677-0380


E-Mail:                   jrein@veeco.com


 


With a copy to:


 


Veeco Instruments Inc.


100
Sunnyside Boulevard, Suite B


Woodbury,
New York  11797


Attention:                                         General Counsel


Telecopy:                                           (516) 714-1208


E-Mail:                   grobbins@veeco.com


 


(c)           if to any Lender, to its address set forth in
the signature page of this Agreement and to the person so designated


 


-
and -


 


(d)           as to each such party at such other address
as such party shall have designated, (i) if such party is a Lender, by written
notice to the Administrative Agent and the Company, (ii) if such party is the
Company, by written notice to the Administrative Agent and each Lender, and
(iii) if such party is the Administrative Agent, by written notice to the
Company and each Lender, in each case delivered in accordance with the
provisions of this Section 10.01.


 


H-62

















 


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


 


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


 


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


 


SECTION 10.02.        Effectiveness; Survival; Integration.  This Agreement shall become effective on the
date on which all parties hereto shall have signed a counterpart copy hereof
and shall have delivered the same to the Administrative Agent. All
representations and warranties made herein and in the other Loan Documents and
in the certificates delivered pursuant hereto or thereto shall survive the
making by the Lenders of the Loans and the issuance by the Issuing Lender of
Letters of Credit, in each case, as herein contemplated and the execution and
delivery to the Lenders of the Notes evidencing the Loans and shall continue in
full force and effect so long as the Obligations hereunder are outstanding and
unpaid and the Commitments are in effect. The obligations of the Company
pursuant to Section 3.07, Section 3.08, Section 3.10, Section 3.13, Section
3.14, Section 6.13, and Section 10.03 hereof shall,


 


H-63

















 


notwithstanding anything herein to the contrary,  survive termination of this Agreement and
payment of the Obligations. This Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.


 


SECTION 10.03.        Expenses.  The Company agrees (a) to indemnify, defend
and hold harmless the Administrative Agent, the Issuing Lender and each Lender
and their respective officers, directors, employees, and affiliates (each, an “indemnified
person”) from and against any and all losses, claims, damages, liabilities or
judgments to which any such indemnified Person may be subject and arising out
of or in connection with the Loan Documents, the financings contemplated
hereby, the use of any proceeds of such financings or any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not
any of such indemnified persons is a party thereto, and to reimburse each of
such indemnified persons upon demand for any reasonable  legal or other expenses incurred in
connection with the investigation or defending any of the foregoing; provided
that the foregoing indemnity will not, as to any indemnified person, apply to
losses, claims, damages, liabilities, judgments or related expenses to the
extent arising from the willful misconduct or gross negligence of such
indemnified person, (b) to pay or reimburse the Administrative Agent for all
its out-of-pocket costs and reasonable expenses incurred in connection with the
preparation and execution of and any amendment, supplement or modification to
this Agreement, the Notes any other Loan Documents, and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including without limitation, the
reasonable fees and disbursements of Farrell Fritz, P.C., counsel to the
Administrative Agent, and (c) to pay or reimburse each Lender and the
Administrative Agent for all their costs and expenses incurred in connection
with the enforcement and preservation of any rights under this Agreement, the
Notes and the other Loan Documents, including, without limitation, the
reasonable fees and disbursements of counsel (including, without limitation,
in-house counsel) to the Administrative Agent and to the several Lenders,
including all such out-of-pocket expenses incurred during any work-out,
restructuring or negotiations in respect of the Obligations.


 


SECTION 10.04.        Amendments
and Waivers.  With the written consent of the Required
Lenders, the Administrative Agent and the Company may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Notes or any of the other Loan
Documents or changing in any manner the rights of the Lenders or of the Company
hereunder or thereunder, and with the written consent of the Required Lenders,
the Administrative Agent on behalf of the Lenders may execute and deliver to
the Company a written instrument waiving, on such terms and conditions as the
Administrative Agent or the Required Lenders may specify in such instrument,
any of the requirements of this Agreement or the Notes or any of the other Loan
Documents or any Default or Event of Default; provided, however,
that no such waiver and no such amendment, or supplement or modification shall
(a) extend the maturity of any Note or any installment thereof or the Revolving
Credit Commitment Termination Date; (b) reduce the rate or extend the time of
payment of interest on any Note or any fees payable to the Lenders hereunder;
(c) reduce the principal amount of any Note or the amount of any reimbursement
due in respect of any Letter of Credit; (d) amend, modify or waive any
provision of this Section 10.04 or Sections 3.11 or 9.09 (to the extent that
such revisions would affect the pro rata sharing of the Lenders, other than
changes resulting from permitted assignments); (e) reduce the percentage
specified in the definition of Required Lenders or amend or modify any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination granting
consent hereunder; (f) consent to the assignment or transfer by the Company of
any of its rights or obligations under this Agreement; (g) except as expressly
permitted pursuant to this Agreement or any other Loan Document


 


H-64

















 


release any collateral
security granted to the Administrative Agent, if any; (h) release any Guarantor
from its Guaranty, or limit any Guarantor’s liability with respect to its
Guaranty, except with respect to the release of any Guarantor which
subsequently becomes a Non-Material Subsidiary; or (i) increase the amount of
the Total Commitment; or (j) permit any Letter of Credit issued hereunder to
expire on or after the Revolving Credit Commitment Termination Date, in each
case specified in clauses (a) through (j) above without the written consent of
all the Lenders; and provided, further, that no such waiver and
no such amendment, supplement or modification shall (i) amend, modify,
supplement or waive any provision of Article IX hereof with respect to the
Administrative Agent without the written consent of the Administrative Agent or
(ii) increase the amount of any Lender’s Commitment without the written consent
of such Lender. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Company, the Lenders, the Administrative Agent and all future holders
of the Notes.


 


SECTION 10.05.        Successors and Assigns; Participations.


 


(a)           This Agreement shall
be binding upon and inure to the benefit of the Company, the Lenders, the
Administrative Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement or any other Loan Document
without the prior written consent of each Lender (and any such assignment or
transfer without such consent shall be null and void).


 


(b)           Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other financial institutions (“Participants”)
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender’s obligations under this Agreement to the other
parties under this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement, and the Company
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. The Company agrees that each Participant shall be entitled to the
benefits of Sections 3.07, 3.08, 3.10, 3.13 and 3.14 hereof with respect to its
participation in the Commitments and in the Loans and Letters of Credit
outstanding from time to time; provided, however, that no
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. No Participant shall
have the right to consent to any amendment to, or waiver of, any provision of
this Agreement, except the transferor Lender may provide in its agreement with
the Participant that such Lender will not, without the consent of the
Participant, agree to any amendment or waiver described in clause (a) through
clause (k) of Section 10.04 hereof.


 


(c)           Subject to the last sentence of this paragraph (c) any
Lender may, in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to any Lender or any domestic
banking affiliate thereof, and, with the consent of the Administrative Agent,
and, so long as no Default or Event of Default shall have occurred and be
continuing, the Company (which in each case shall not be unreasonably withheld,
delayed or conditioned), to one or more additional banks or financial
institutions (“Purchasing Lenders”) all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Acceptance Agreement, executed by such Purchasing Lender, such transferor
Lender and the Administrative Agent (and, in the case of an Assignment and
Acceptance Agreement relating to a Purchasing Lender that is not then a


 


H-65

















 


Lender or a domestic banking affiliate thereof,
also executed by the Company), and delivered to the Administrative Agent for
its acceptance. Upon such execution, delivery and acceptance from and after the
effective date specified in such Assignment and Acceptance Agreement, (i) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance Agreement, have the rights and
obligations of a Lender hereunder with Commitments as set forth therein and
(ii) the transferor Lender thereunder shall, to the extent provided in such
Assignment and Acceptance Agreement, be released from its obligations under
this Agreement arising after such transfer 
(and, in the case of an Assignment and Acceptance Agreement covering all
or the remaining portion of a transferor Lender’s rights and obligations under
this Agreement, such transferor Lender shall cease to be a party hereto except
as to Sections 3.07, 3.08, 3.10 and 10.03 hereof for the period prior to the
effective date). Such Assignment and Acceptance Agreement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting adjustment of
Commitment Proportions arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
or in respect of this Agreement and the Notes. On or prior to the effective
date specified in such Assignment and Acceptance Agreement, the Company, at its
own expense, shall execute and deliver to the Administrative Agent, in exchange
for the surrendered Note, a new Revolving Credit Note to the order of such
Purchasing Lender in an amount equal to each Commitments assumed by it pursuant
to such Assignment and Acceptance Agreement and, if the transferor Lender has
retained any Commitment hereunder, a new Revolving Credit Note to the order of
the transferor Lender in an amount equal to such Commitment retained by it
hereunder. Such new Notes shall be in a principal amount equal to the principal
amount of such surrendered Notes, shall be dated the effective date specified
in the Assignment and Acceptance Agreement and shall otherwise be in the form
of the Notes replaced thereby. The Notes surrendered by the transferor Lender
shall be returned by the Administrative Agent to the Company marked “cancelled”.
Anything in this Section 10.05 to the contrary notwithstanding, no transfer to
a Purchasing Lender shall be made pursuant to this paragraph (c) if (x) such
transfer by any one transferor Lender to any one Purchasing Lender (other than
a Purchasing Lender which is a Lender hereunder prior to such transfer) is in
respect of less than $10,000,000 of the Commitments of such transferor Lender
or (y) if less than all of the Commitment of such transferor Lender is
transferred, after giving effect to such transfer the amount held by any
transferor Lender would be less than $10,000,000.


 


(d)           The Administrative Agent, on behalf of the Company, shall
maintain at its address referred to in Section 10.01 hereof a copy of each
Assignment and Acceptance Agreement delivered to it and a register (the “Register”)
for the recordation of the names and addresses of the Lenders and the
commitments of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence
of demonstrable error and the Company, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as the owner of
the Loans recorded therein for all purposes of this Agreement. The Register
shall be available for inspection by the Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.


 


(e)           Upon its receipt of an Assignment and Acceptance Agreement
executed by a transferor Lender and a Purchasing Lender (and, in the case of a
Purchasing Lender that is not then a Lender or an Affiliate thereof, by the
Company) together with payment by the Purchasing Lender to the Administrative
Agent of a registration and processing fee of $3,500 if the Purchasing Lender
is not a Lender prior to the execution of an Assignment and Acceptance
Agreement and $2,500 if the Purchasing Lender is a Lender prior to the
execution of an Assignment and Acceptance Agreement, the Administrative Agent
shall (i) accept such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the Register, and (iii) give prompt notice of
such acceptance and


 


H-66

















 


recordation to the Lenders and the Company.


 


(f)            The Company authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a “Transferee”) and any
prospective Transferee any and all financial information in such Lender’s
possession concerning the Company and its Affiliates which has been delivered
to such Lender by or on behalf of the Company pursuant to this Agreement or
which has been delivered to such Lender by the Company in connection with such
Lender’s credit evaluation of the Company and its Subsidiaries prior to
entering into this Agreement.


 


(g)           If, pursuant to this Section 10.05, any interest in this
Agreement, a participation agreement, or any Note is transferred to any
transferee which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the transferor Lender (for the benefit of the transferor Lender,
the Administrative Agent and the Company) that under applicable law and
treaties no taxes will be required to be withheld by the Administrative Agent,
the Company, or the transferor Lender with respect to any payments to be made
to such Transferee in respect of the Loans, (ii) to furnish to the
Administrative Agent, the transferor Lender and the Company the documentation
required of Lenders under Section 3.10(c) hereof, and (iii) to agree (for the
benefit of the Administrative Agent, the transferor Lender and the Company) to provide
the Administrative Agent, the transferor Lender and the Company such additional
documentation required by Lenders in the future under Section 3.10(c) hereof.


 


(h)           Any Lender may at any time pledge or assign or grant a
security interest in all or any part of its rights under this Agreement and the
other Loan Documents, including any portion of its Notes, to any of the twelve
(12) Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341, provided that no such assignment shall release the
transferor Lender from its Commitments or its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party to this
Agreement.


 


SECTION 10.06.        No Waiver; Cumulative Remedies.  Neither any failure nor any delay on the part of any Lender, the
Issuing Lender or the Administrative Agent in exercising any right, power or
privilege hereunder or under any Note or any other Loan Document shall operate
as a waiver thereof, nor shall a single or partial exercise thereof preclude
any other or further exercise of any other right, power or privilege. The
rights, remedies, powers and privileges herein provided or provided in the
other Loan Documents are cumulative and not exclusive of any rights, remedies
powers and privileges provided by law.


 


SECTION 10.07.        APPLICABLE LAW.  THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.


 


SECTION 10.08.        SUBMISSION TO JURISDICTION; JURY
WAIVER.  THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE
STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF NASSAU OR COUNTY OF SUFFOLK IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND TO THE EXTENT 


 


H-67

















 


PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY WAIVES
AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY
SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO
THE JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING
IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR THEREIN OR THE SUBJECT
MATTER HEREOF OR THEREOF MAY NOT BE LITIGATED IN OR BY SUCH FEDERAL OR STATE
COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AGREES NOT TO
(i) SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH
COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON
TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT OR (ii) ASSERT ANY COUNTERCLAIM IN ANY
SUCH SUIT, ACTION OR PROCEEDING UNLESS SUCH COUNTERCLAIM IS A COMPULSORY OR
MANDATORY COUNTERCLAIM UNDER APPLICABLE LAWS GOVERNING CIVIL PROCEDURE. THE
COMPANY AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY
METHOD AUTHORIZED BY THE LAWS OF NEW YORK. EACH PARTY HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW
THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING THERETO, AND AGREES THAT NO
PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE
COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT, THE
ISSUING LENDER OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDERS TO ENTER INTO THIS
AGREEMENT AND TO MAKE THE LOANS AND OTHER EXTENSIONS OF CREDIT.


 


SECTION 10.09.        Severability.  In case any one or more of the provisions contained in this Agreement,
any Note or any other Loan Document should be invalid, illegal or unenforceable
in any respect in any jurisdiction, the validity, legality and enforceability
of the remaining provisions contained herein and therein shall not in any way
be affected or impaired thereby in such jurisdiction nor shall such invalidity,
illegality or unenforceability invalidate such affected provision in any other
jurisdiction.


 


SECTION 10.10.        Right
of Setoff.  The Company and the Guarantors hereby grant
to the Administrative Agent, the Issuing Lender, each Lender and each Affiliate
of each Lender, a continuing lien, security interest and right of setoff as
security for all liabilities and obligations to the Administrative Agent, the
Issuing Lender and each Lender, whether now existing or hereafter arising, upon
and against all deposits, credits, collateral and property, now or hereafter in
the possession, custody, safekeeping or


 


H-68

















 


control of the Administrative Agent, the
Issuing Lender, any Lender or any Affiliate of such Lender and their respective
successors or assigns or in transit to any of them. At any time, without demand
or notice (any such notice being expressly waived by the Company), the
Administrative Agent, the Issuing Lender, each Lender and each Affiliate of
each Lender may set off the same or any part thereof and apply the same to any
liability or obligation of the Company or any Guarantor even though unmatured
and regardless of the adequacy of any other collateral securing this Agreement.
ANY AND ALL RIGHTS TO REQUIRE THE
ADMINISTRATIVE AGENT, THE ISSUING LENDER, EACH LENDER OR ANY AFFILIATE OF EACH
LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THIS AGREEMENT, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT
TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR ANY GUARANTOR,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


SECTION 10.11.        Confidentiality.  Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information, materials and documents furnished by
the Company to the Administrative Agent and the Lenders pursuant to this
Agreement (the “Confidential Information”). Notwithstanding the foregoing, such
party shall be permitted to disclose Confidential Information (a) to such of
its officers, directors, employees, agents, representatives and professional
advisors in any of the transactions contemplated by, or the administration of,
this Agreement; (b) to the extent such Confidential Information (i) becomes
publicly available other than as a result of a breach of this Section 10.11 by
the disclosing party, or (ii) becomes available to such party on a
non-confidential basis from a source other than the Company or its Subsidiaries
which to such party’s knowledge is not prohibited from disclosing such
Confidential Information to such party by a contractual or other legal
obligation; (c) to the extent the Company or any of its Subsidiaries shall have
consented to such disclosure in writing; or (d) to any prospective transferee
or participant in connection with any contemplated transfer of the Notes or any
interest therein provided such transferee or participant agrees to treat the
Confidential Information in a manner consistent with this Section 10.11. Nothing
herein shall prohibit the disclosure of Confidential Information required in
connection with any litigation or where such disclosure is required pursuant to
applicable laws, regulations, court order or similar legal process or requested
by any governmental agency or authority; provided, however, in the event that
such party is requested or required by law to disclose any of the Confidential
Information, such party shall provide the Company with written notice, unless
notice is prohibited by law, of any such request or requirement so that the
Company may seek a protective order or other appropriate remedy; provided that
no such notification shall be required in respect of any disclosure to
regulatory authorities having jurisdiction over such party.


 


SECTION 10.12.        Headings.  Section headings used herein are for convenience of reference only and
are not to affect the construction of or be taken into consideration in
interpreting this Agreement.


 


SECTION 10.13.        Construction.  This Agreement is the result of negotiations
between, and has been reviewed by, the Company, the Administrative Agent, the
Lenders and their respective counsel. Accordingly, this Agreement shall be
deemed to be the product of each party hereto, and no ambiguity shall be
construed in favor of or against either the Company, the Administrative Agent,
or any Lender.


 


SECTION 10.14.        Counterparts.  This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, taken together, shall
constitute one and the same instrument.


 


H-69

















 


SECTION 10.15.        Special Provisions with Respect to
Subordinated Notes.  The parties acknowledge and agree that the
indebtedness of the Company to the Lenders hereunder shall constitute “Designated
Senior Indebtedness” for purposes of the Indentures.


 


SECTION 10.16.        US Patriot Act.  Each Lender that is subject to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies the Company that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Company,
which information includes the name and address of the Company and other
information that will allow such Lender to identify the Company in accordance
with the Act. The Company will provide such information and take such actions
as are reasonably requested by the Administrative Agent or any Lender in order
to assist such party in maintaining compliance with the Act.


 


SECTION
10.17.        Documentation Agent.  North Fork
Bank, in its capacity as Documentation Agent, shall have no responsibilities or
obligations hereunder, provided that the provisions of this Section 10.17 shall
not affect or limit their responsibilities, rights or obligations as Lenders
hereunder.


 


[next page is signature page]


 


H-70

















 


IN WITNESS WHEREOF,
the Company, the Administrative Agent and the Lenders have caused this
Agreement to be duly executed by their duly authorized officers, as of the day
and year first above written.


 


 


	
   

  	
  VEECO
  INSTRUMENTS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ John F. Rein, Jr.

  	
   

  
	
   

  	
  Name: 

  	
  John F. Rein, Jr.

  
	
   

  	
  Title:

  	
  Executive Vice
  President/Chief

  
	
   

  	
   

  	
  Financial Officer

  
					



 


H-71

















 


	
  Revolving
  Credit

  	
  HSBC BANK USA, NATIONAL

  
	
  Commitment:
  $30,000,000

  	
  ASSOCIATION,
  as Administrative Agent, as a

  Lender, as Swingline Lender and as Issuing Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Christopher Mendelsohn

  	
   

  
	
   

  	
  Name: 

  	
  Christopher Mendelsohn

  
	
   

  	
  Title:

  	
  First
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime
  Rate Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  HSBC Bank USA, National
  Association

  
	
   

  	
   

  	
  Special Lending Dept., 26th
  Floor

  
	
   

  	
   

  	
  1 HSBC Center

  
	
   

  	
   

  	
  Buffalo, New York 14203

  
	
   

  	
   

  
	
   

  	
  Lending Office for Eurocurrency
  Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  HSBC Bank USA, National
  Association

  
	
   

  	
   

  	
  Special Lending Dept., 26th
  Floor

  
	
   

  	
   

  	
  1 HSBC Center

  
	
   

  	
   

  	
  Buffalo, New York 14203

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  	
  HSBC Bank USA, National
  Association

  
	
   

  	
   

  	
  534 Broad Hollow Road

  
	
   

  	
   

  	
  Melville, New York 11747

  
	
   

  	
   

  	
  Attention:

  	
  Relationship Manager -

  
	
   

  	
   

  	
   

  	
  Veeco Instruments Inc.

  
	
   

  	
   

  	
  Telecopy:

  	
  (631) 752-4340

  
						



 


H-72

















 


	
  Revolving
  Credit

  	
  NORTH
  FORK BANK, as a Lender

  
	
  Commitment:
  $20,000,000

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/
  Jed Pomerantz

  	
   

  
	
   

  	
  Name:

  	
  Jed Pomerantz

  
	
   

  	
  Title:

  	
  VP

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime
  Rate Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  North Fork Bank

  
	
   

  	
   

  	
  275 Broadhollow Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Jed Pomerantz

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for
  Eurocurrency Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  North Fork Bank

  
	
   

  	
   

  	
  275 Broadhollow Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Jed Pomerantz

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:
  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  North Fork Bank

  
	
   

  	
   

  	
  275 Broadhollow Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Jed Pomerantz

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
  (631) 531-2797

  
						



 


H-73

















 


	
  Revolving
  Credit

  	
  SOVEREIGN
  BANK, as a Lender

  
	
  Commitment:
  $17,500,000

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/
  Christine Gerula

  	
   

  
	
   

  	
  Name:

  	
  Christine
  Gerula

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime
  Rate Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Sovereign Bank

  
	
   

  	
   

  	
  3 Huntington Quadrangle

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Christine Gerula, Sen. VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for
  Eurocurrency Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Sovereign Bank

  
	
   

  	
   

  	
  3 Huntington Quadrangle

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Christine Gerula, Sen. VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sovereign Bank

  
	
   

  	
   

  	
  3 Huntington Quadrangle

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Christine Gerula, Sen. VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
  (631) 531 0685

  
						



 


H-74

















 


	
  Revolving
  Credit

  	
  WACHOVIA
  BANK, N.A. as a Lender

  
	
  Commitment:
  $17,500,000

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Robert J. Milas

  	
   

  
	
   

  	
  Name:

  	
  Robert J. Milas

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime
  Rate Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank. N.A.

  
	
   

  	
   

  	
  LI Commercial Lending

  
	
   

  	
   

  	
  58 South Service Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Robert Milas

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
  Telecopy:

  	
  (516) 577-8333

  
	
   

  	
   

  
	
   

  	
  Lending Office for
  Eurocurrency Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank. N.A.

  
	
   

  	
   

  	
  LI Commercial Lending

  
	
   

  	
   

  	
  58 South Service Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Robert Milas

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
  Telecopy:

  	
  (516) 577-8333

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank. N.A.

  
	
   

  	
   

  	
  LI Commercial Lending

  
	
   

  	
   

  	
  58 South Service Road

  
	
   

  	
   

  	
  Melville, NY  11747

  
	
   

  	
   

  	
  Attention:

  	
  Robert Milas

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
  Telecopy:

  	
  (516) 577-8333

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  - and -

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia

  	
   

  
	
   

  	
   

  	
  Global Corporate Loan
  Administration

  
	
   

  	
   

  	
  201 S. College St., CP9,
  NC1183

  
	
   

  	
   

  	
  Charlotte, NC  28288-1183

  
	
   

  	
   

  	
  Attention:

  	
  Daniel Ogent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
  (704) 715-0099

  
						



 


H-75

















 


	
  Revolving
  Credit

  	
  CITIBANK,
  N.A., as a Lender

  
	
  Commitment:
  $15,000,000

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Anthony
  V. Pantina

  	
   

  
	
   

  	
  Name:

  	
  Anthony V.
  Pantina

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime
  Rate Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Citibank NA

  
	
   

  	
   

  	
  666 Fifth Avenue

  
	
   

  	
   

  	
  New York, NY 10103

  
	
   

  	
   

  	
  Attention:

  	
  Anthony V.
  Pantina

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for
  Eurocurrency Loans:

  
	
   

  	
   

  
	
   

  	
   

  	
  Citibank NA

  
	
   

  	
   

  	
  666 Fifth Avenue

  
	
   

  	
   

  	
  New York, NY 10103

  
	
   

  	
   

  	
  Attention:

  	
  Anthony V.
  Pantina

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Citibank NA

  
	
   

  	
   

  	
  666 Fifth Avenue

  
	
   

  	
   

  	
  New York, NY 10103

  
	
   

  	
   

  	
  Attention:

  	
  Anthony V.
  Pantina

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 783-6266

  
						



 


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