Exhibit 10.30



 






EXHIBIT 10.30




FOURTH AMENDED AND RESTATED CREDIT AGREEMENT



September 13, 2005



Among



ARGO-TECH CORPORATION,

as Borrower,



AT HOLDINGS CORPORATION,



The LENDERS Party Hereto



and



NATIONAL CITY BANK,

as Administrative Agent and Issuing Bank



 





NATIONAL CITY BANK and J.P. MORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners



JPMORGAN CHASE BANK, N.A.,

as Issuing Bank and Syndication Agent



GENERAL ELECTRIC CAPITAL CORPORATION

and

FIRSTMERIT BANK, N.A.

as Co-Documentation Agents




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	Definitions
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	2	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	26	 
	SECTION 1.03. Terms Generally
	 	 	27	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	27	 
	ARTICLE II
	 	 	 	 
	The Credits
	 	 	 	 
	SECTION 2.01. Commitments; Outstanding Loans
	 	 	27	 
	SECTION 2.02. Loans and Borrowings
	 	 	28	 
	SECTION 2.03. Requests for Borrowings
	 	 	28	 
	SECTION 2.04. Letters of Credit
	 	 	29	 
	SECTION 2.05. Funding of Borrowings
	 	 	33	 
	SECTION 2.06. Interest Elections
	 	 	34	 
	SECTION 2.07. Termination and Reduction of Commitments
	 	 	35	 
	SECTION 2.08. Repayment of Loans; Evidence of Debt
	 	 	36	 
	SECTION 2.10. Prepayment of Loans
	 	 	37	 
	SECTION 2.11. Fees
	 	 	38	 
	SECTION 2.12. Interest
	 	 	39	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	40	 
	SECTION 2.14. Increased Costs
	 	 	40	 
	SECTION 2.15. Break Funding Payments
	 	 	42	 
	SECTION 2.16. Taxes
	 	 	42	 
	SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	43	 
	SECTION 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	45	 
	SECTION 2.19. All Advances to Constitute One Indebtedness; Same Indebtedness; Other References
	 	 	45	 
	SECTION 2.20. Optional Increases in Revolving Commitments; Added Term Loans
	 	 	46	 
	ARTICLE III
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	48	 
	SECTION 3.02. Authorization; Enforceability
	 	 	48	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	48	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	48	 
	SECTION 3.05. Properties
	 	 	49	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	49	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	50	 
	SECTION 3.08. Investment and Holding Company Status
	 	 	50	 
	SECTION 3.09. Taxes
	 	 	50	 
	SECTION 3.10. ERISA
	 	 	50	 






2









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.11. Disclosure
	 	 	50	 
	SECTION 3.12. Subsidiaries
	 	 	51	 
	SECTION 3.13. Insurance
	 	 	51	 
	SECTION 3.14. Labor Matters
	 	 	51	 
	SECTION 3.15. Solvency
	 	 	51	 
	SECTION 3.16. Security Documents
	 	 	52	 
	SECTION 3.17. Federal Reserve Regulations
	 	 	52	 
	SECTION 3.18. TRW Agreement
	 	 	52	 
	SECTION 3.21. Purchase Documents
	 	 	53	 
	ARTICLE IV
	 	 	 	 
	Conditions
	 	 	 	 
	SECTION 4.01. Opening Covenants
	 	 	53	 
	SECTION 4.02. Prior to Initial Credit Event
	 	 	53	 
	SECTION 4.03. Each Credit Event
	 	 	56	 
	ARTICLE V
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	56	 
	SECTION 5.02. Notices of Material Events
	 	 	58	 
	SECTION 5.03. Information Regarding Collateral
	 	 	58	 
	SECTION 5.04. Existence; Conduct of Business
	 	 	59	 
	SECTION 5.05. Payment of Obligations
	 	 	59	 
	SECTION 5.06. Maintenance of Properties
	 	 	59	 
	SECTION 5.07. Insurance
	 	 	59	 
	SECTION 5.08. Casualty and Condemnation
	 	 	60	 
	SECTION 5.09. Books and Records; Inspection and Audit Rights
	 	 	61	 
	SECTION 5.10. Compliance with Laws and Agreements
	 	 	61	 
	SECTION 5.11. Use of Proceeds and Letters of Credit
	 	 	61	 
	SECTION 5.12. Additional Subsidiaries
	 	 	62	 
	SECTION 5.13. Further Assurances
	 	 	62	 
	ARTICLE VI
	 	 	 	 
	Negative Covenants
	 	 	 	 
	SECTION 6.01. Indebtedness; Certain Equity Securities
	 	 	63	 
	SECTION 6.02. Liens
	 	 	64	 
	SECTION 6.03. Fundamental Changes
	 	 	65	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	66	 
	SECTION 6.05. Asset Sales
	 	 	67	 
	SECTION 6.06. Sale and Lease-Back Transactions
	 	 	68	 
	SECTION 6.07. Hedging Agreements
	 	 	68	 
	SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness
	 	 	69	 
	SECTION 6.09. Transactions with Affiliates
	 	 	70	 
	SECTION 6.10. Restrictive Agreements
	 	 	71	 
	SECTION 6.11. Amendment of Material Documents
	 	 	71	 
	SECTION 6.13. Leverage Ratios
	 	 	72	 
	SECTION 6.15. Fixed Charge Coverage Ratio
	 	 	72	 
	SECTION 6.16. Certain Actions under June 2004 Note Documents
	 	 	72	 
	ARTICLE VII
	 	 	 	 






3









 






	 	 	 	 	 
	 	 	Page	 
	Events of Default
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	The Administrative Agent
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	Miscellaneous
	 	 	 	 
	SECTION 9.01. Notices
	 	 	77	 
	SECTION 9.02. Waivers; Amendments
	 	 	78	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	80	 
	SECTION 9.04. Successors and Assigns
	 	 	81	 
	SECTION 9.05. Survival
	 	 	84	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	84	 
	SECTION 9.07. Severability
	 	 	85	 
	SECTION 9.08. Right of Setoff
	 	 	85	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	85	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	86	 
	SECTION 9.11. Headings
	 	 	86	 
	SECTION 9.12. Confidentiality
	 	 	86	 
	SECTION 9.13. Joint Lead Arrangers, et al
	 	 	87	 
	SECTION 9.14. Interest Rate Limitation
	 	 	87	 
	SECTION 9.15. Existing Credit Agreement; Effectiveness of Amendment and Restatement
	 	 	87	 






4









 





SCHEDULES:




Schedule 1.01(a) — Purchase Documents

Schedule 1.01(b) — Fiscal Quarter Ends

Schedule 1.01(c) — Existing Liens

Schedule 1.01(d) — Existing Investments

Schedule 1.01(e) — Immaterial Subsidiaries

Schedule 2.01(a) — Commitments

Schedule 2.01(b) — Existing Term Loans

Schedule 2.01(c) — Fourth Restatement Term Loans

Schedule 2.04 — Existing Letters of Credit

Schedule 3.05 — Real Property

Schedule 3.06 — Disclosed Matters

Schedule 3.12 — Subsidiaries

Schedule 3.13 — Insurance

Schedule 3.14 — Labor Matters

Schedule 6.10 — Existing Restrictions



EXHIBIT:




Exhibit A — Form of Assignment and Acceptance

Exhibit B — Form of Subordination Agreement

Exhibit C — Form of Management Fee Subordination




5









 





FOURTH AMENDED AND RESTATED CREDIT AGREEMENT




          This Fourth Amended and Restated Credit Agreement is made and entered into as of September 13,
2005, by and among:





	 	(i)	 	ARGO-TECH CORPORATION, a Delaware corporation (the “Borrower”);
	 
	 	(ii)	 	AT HOLDINGS CORPORATION, a Delaware corporation (“Holdings”);
	 
	 	(iii)	 	THE FINANCIAL INSTITUTIONS as signatory lender parties hereto and their
successors and assigns (collectively, the “Lenders”, with each individually being a
“Lender”);
	 
	 	(iv)	 	NATIONAL CITY BANK, as successor to JPMorgan Chase Bank, N.A., as
Administrative Agent and Issuing Bank;
	 
	 	(v)	 	JPMORGAN CHASE BANK, N.A., as Issuing Bank in respect of certain of the Letters
of Credit (defined below);
	 
	 	(vi)	 	GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agent; and
	 
	 	(vii)	 	FIRSTMERIT BANK, N.A., as Co-Documentation Agent.





Recitals:




          A. The parties to this Agreement are the parties to that certain Third Amended and Restated
Credit Agreement dated as of June 23, 2004, as amended by a First Amendment thereto dated January
19, 2005 (collectively, the “Existing Credit Agreement”), as in effect immediately prior to
the Fourth Restatement Effective Date (as defined herein).




          B. Pursuant and subject to the Existing Credit Agreement, the Lenders agreed to advance to the
Borrower revolving credit loans in an aggregate principal amount not to exceed $30,000,000
(collectively, the “Existing Revolving Loans”), consolidated term loans in the original
aggregate principal amount of $15,000,000 (collectively, the “Existing Term Loans”); and
the Issuing Banks agreed to issue letters of credit (collectively, the “Existing Letters of
Credit”).




          C. On the close of business September 12, 2005, the aggregate unpaid principal balance of the
Existing Revolving Loans was $0; the aggregate unpaid principal balance of the Existing Term Loans
was $14,250,000.00; and the aggregate undrawn face amount of the Existing Letters of Credit was
$8,482,573.78.




          D. The Borrower and Holdings have informed the Agent and the Lenders that pursuant to the
Agreement and Plan of Merger by and among AT Holdings Corporation, Argo-Tech Corporation, GreatBanc
Trust Company, as Trustee, V.G.A.T. Investors, LLC, and Vaughn Merger Sub, Inc. dated as of
September 13, 2005 and the other related documents listed on Schedule 1.01(a) hereto (collectively,
the “Purchase Documents”) a Change in Control (as




 









 







defined in the Existing Credit Agreement) is to occur on the last day of the Borrower’s
current fiscal year.




          E. The Borrower and Holdings have requested the Lenders to amend and restate in their entirety
the terms and conditions of the Existing Credit Agreement to, among other modifications, (i)
consent to and reflect the consummation of the transactions contemplated by the Purchase Documents,
(ii) increase the maximum aggregate principal amount of revolving credit available to $40,000,000
at any time outstanding, and (iii) advance additional term loans to the Borrower in the aggregate
principal amount of $5,000,000.




          F. Subject to the satisfaction of the terms and conditions set forth in this Agreement, the
parties hereto agree that the Existing Credit Agreement shall be amended and restated as provided
herein.




Agreements:




          NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements
hereinafter set forth, the Borrower, Holdings, the Lenders, the Issuing Bank and the Administrative
Agent hereby agree that the Existing Credit Agreement is hereby amended and restated in its
entirety to provide as follows:




ARTICLE I



Definitions




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Account Debtor” has the meaning assigned to such term in the Security Agreement.




          “Accounts” has the meaning assigned to such term in the Security Agreement.




          “Acquired Business” means any Person, property, business or asset acquired (or, as
applicable, proposed to be acquired) by the Borrower or a Subsidiary pursuant to a Permitted
Acquisition.




          “Added Term Loan” has the meaning assigned to such term in Section 2.20.




          “Added Term Loan Amendment” has the meaning assigned to such term in Section 2.20.




2









 








          “Added Term Loan Lender” means a Lender with an outstanding Added Term Loan.




          “Added Term Loan Maturity Date” means, with respect to each Added Term Loan, such date
of final maturity of such Added Term Loan as shall be provided in the Added Term Loan Amendment
applicable thereto; provided that in no event shall an Added Term Loan Maturity Date be earlier
than the Revolving Maturity Date, the Existing Term Loan Maturity Date, and the Fourth Restatement
Term Loan Maturity Date and, if they are different, the earliest thereof.




          “Adjusted EBITDA” means, for any period, the Consolidated EBITDA for such period,
adjusted (a) to include the Consolidated EBITDA of any Acquired Business acquired during such
period (and, solely for purposes of determining whether a proposed acquisition is a Permitted
Acquisition pursuant to clause (iv) of the definition of the term “Permitted Acquisition”, (i) any
Acquired Business that, at the time of calculation of Adjusted EBITDA for such purpose, has been
acquired subsequent to the end of such period and prior to such time of calculation as well as (ii)
the business proposed to be acquired) pursuant to a Permitted Acquisition and not subsequently
sold, transferred or otherwise disposed of during such period (or, solely for purposes of
determining whether a proposed acquisition is a Permitted Acquisition, subsequent to the end of
such period and prior to such time), based on the Consolidated EBITDA of such Acquired Business for
such period (including the portion thereof attributable to such period prior to the date of
acquisition of such Acquired Business), (b) to give pro forma effect to Permitted S-X Adjustments
in respect of an Acquired Business, (c) to exclude the Consolidated EBITDA of any Sold Business
sold, transferred or otherwise disposed of during such period (and, solely for purposes of
determining whether a proposed acquisition is a Permitted Acquisition pursuant to clause (iv) of
the definition of the term “Permitted Acquisition”, any Sold Business that, at the time of
calculation of Adjusted EBITDA for such purpose, has been sold, transferred or otherwise disposed
of subsequent to the end of such period and prior to such time of calculation), based on the
Consolidated EBITDA of such Sold Business for such period (including the portion thereof
attributable to such period prior to the date of sale, transfer or disposition of such Sold
Business) and (d) to reflect other adjustments reasonably satisfactory to the Administrative Agent.




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the nearest sixth decimal
point) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.




          “Administrative Agent” means National City Bank, in its capacity as successor
administrative agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that (a)
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is




3









 







under common Control with the Person specified or (b) owns, directly or indirectly, 10% or
more of the voting securities of the Person specified.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day, and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




          “Applicable Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving Commitment. If the
Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to any assignments.




          “Applicable Rate” means, for any day with respect to any ABR Loan or Eurodollar Loan,
or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption “ABR Spread” “Eurodollar Spread” or “Commitment Fee
Rate”, as the case may be, based upon the Leverage Ratio as of the most recent determination date;
provided that until the delivery to the Administrative Agent, pursuant to Section 5.01(b),
of Borrower’s consolidated financial statements for Borrower’s first full fiscal quarter commencing
after the Fourth Restatement Effective Date, the “Applicable Rate” shall be the applicable rate per
annum set forth below in Category 2:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ABR	 	Eurodollar	 	Commitment Fee
	Leverage Ratio:	 	Spread	 	Spread	 	Rate
	Category 1
	 	 	1.25	 	 	 	2.75	 	 	 	0.50	 
	Greater than or equal to
6.00 to 1.00
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2
	 	 	1.00	 	 	 	2.50	 	 	 	0.50	 
	Greater than or equal to
5.00 to 1.00 but less
than 6.00 to 1.00
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3
	 	 	0.75	 	 	 	2.25	 	 	 	0.375	 
	Less than 5.00 to 1.00
	 	 	 	 	 	 	 	 	 	 	 	 






          For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of
each fiscal quarter of Borrower’s fiscal year based upon Borrower’s consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the




4









 







period commencing on and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Leverage Ratio
shall be deemed to be in Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) if the Borrower fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 5.01(a) or (b), during the period from the date that is
five (5) Business Days after the date on which delivery thereof is required by Section 5.01(a) or
(b) until such consolidated financial statements are delivered.




          “Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” means Argo-Tech Corporation, a Delaware corporation.




          “Borrowing” means Loans of the same Class and Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect.




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in either or both of Cleveland, Ohio and New York City, New York are authorized or
required by law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term “Business Day” shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.




          “California Property” means that parcel of land and buildings and improvements
situated thereon known as 617 West 17th Street, Costa Mesa, California.




          “Capital Expenditures” means, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Borrower and its consolidated Subsidiaries that are
(or would be) set forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) the deemed principal portion of Capital Lease Obligations
incurred by the Borrower and its consolidated Subsidiaries during such period.




          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




5









 








          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person other than Holdings of any shares of capital stock of the
Borrower; (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof), other than
Permitted Owners of shares representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Holdings; (c) occupation of a majority
of the seats (other than vacant seats) on the board of directors of Holdings by Persons who were
neither (i) nominated by AT Holdings LLC or the chief executive officer of the Borrower nor (ii)
appointed by directors so nominated; or (d) the failure of the Permitted Owners to have Control of
Holdings at any time prior to an initial public offering of Holdings’ capital stock.




          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Consolidated Term Loans (or, as
applicable, within Consolidated Term Loans, Existing Term Loans, Fourth Restatement Term Loans or
Added Term Loans).




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral” means any and all “Collateral”, as defined in any applicable Security
Document, and any and all Mortgaged Property.




          “Collateral Agent” means the “Collateral Agent”, as defined in the Security Agreement.




          “Common Stock” means shares of Common Stock, par value $.001 per shares, of Holdings.




          “Company Notes” means promissory notes issued to holders of Holdings equity in
connection with the redemption of equity pursuant to the Stockholders’ Agreement




          “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
(adjusted to exclude any non-cash items attributable to purchase accounting for any acquisition
transactions) plus (i) proceeds of business interruption insurance, but only to the extent
not included in Consolidated Net Income and, plus, (ii) without duplication and to the
extent deducted from revenues in determining Consolidated Net Income, the sum of (a) the aggregate
amount of Consolidated Interest Expense for such period, (b) the aggregate amount of letter of
credit fees accrued during such period, (c) the aggregate amount of income tax (or franchise tax or
equivalent tax otherwise named) expense for such period, (d) all amounts




6









 







attributable to depreciation and amortization (including good will impairment charges) for
such period, (e) all extraordinary or non-cash charges during such period and all non-cash charges
associated with ESOP compensation and stock options and stock appreciation rights issued to
management, (f) debt extinguishment expense and write-off of deferred financing costs, (g) expenses
paid for which the Borrower or a Subsidiary has been reimbursed by a third-party (other than an
Affiliate of Holdings), such as an insurance company or TRW, but only to the extent that such
third-party reimbursement was not included as income in determining Consolidated Net Income for
such period, (h) customary and reasonable fees and other expenses in connection with the Effective
Date Transactions, (i) customary and reasonable fees and other expenses in connection with proposed
or consummated Permitted Acquisitions and the issuance of equity or debt securities permitted under
the terms of this Agreement, provided that such fees and expenses in connection with proposed
Permitted Acquisitions and proposed permitted issuances of equity or debt securities that are not
consummated shall not exceed $1,000,000 in the aggregate for any four consecutive fiscal quarter
period, and (j) Permitted Management Fees, and minus, (I) without duplication and to the
extent added to revenues in determining Consolidated Net Income for such period, all extraordinary
gains during such period, all as determined on a consolidated basis with respect to the Borrower
and its Subsidiaries, except as expressly provided herein in accordance with GAAP and (II) to the
extent paid in cash during such period, any charge previously excluded from the computation of
Consolidated Net Income for a prior period pursuant to clause (e), above. For purposes of
determining the Consolidated EBITDA of an Acquired Business or Sold Business as provided in the
definition of Adjusted EBITDA, references in this definition, and in the definitions of
Consolidated Interest Expense and Consolidated Net Income, to the Borrower and its Subsidiaries
shall be deemed to refer to such Acquired Business or Sold Business, as applicable.




          “Consolidated Interest Expense” means, for any period, the interest expense, both
expended and capitalized (including the interest component in respect of Capital Lease Obligations,
but excluding any amortization of deferred financing costs and prepayment fees), accrued or paid by
the Borrower and its Subsidiaries during such period, determined on a consolidated basis in
accordance with GAAP.




          “Consolidated Net Income” means, for any period, net income or loss of the Borrower
and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
provided that there shall be excluded (a) the income of any Person in which any other Person (other
than the Borrower or any of the Subsidiaries or any director holding qualifying shares in
compliance with applicable law) has a joint interest, except income shall be included to the extent
of the amount of dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period and (b) the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or
any of its Subsidiaries or the date that Person’s assets are acquired by the Borrower or any of its
Subsidiaries.




          “Consolidated Term Borrowing” means a Borrowing comprised of or in respect of any of
the Consolidated Term Loans.




          “Consolidated Term Loans” means, collectively, the Existing Term Loans, the Fourth
Restatement Term Loans and the Added Term Loans.




7









 








          “Consolidated Term Loan Lender” means an Existing Term Loan Lender, a Fourth
Restatement Term Loan Lender or an Added Term Loan Lender.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Current Redeemable Equity” means any preferred stock or other preferred equity
interests that, in either case, and except in the event of a Change in Control, is subject to
mandatory redemption at the option of the holder at any time prior to the date that is ninety (90)
days after the Revolving Maturity Date, the Existing Term Loan Maturity Date, the Fourth
Restatement Term Loan Maturity Date or the Added Term Loan Maturity Date (if they are different,
whichever is latest).




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, pursuant to Article VII become an
Event of Default.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.




          “dollars” or “$” refers to lawful money of the United States of America.




          “Effective Date Transactions” means, collectively, the Restatement Transactions and
the merger and acquisition transactions to be effected pursuant to the Purchase Documents.




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by or with any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, handling, treatment, storage, disposal, release or threatened
release of any Hazardous Material or to health and safety matters.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, natural resource damage, costs of environmental remediation, administrative
oversight costs, fines, penalties or indemnities), of Holdings, the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the




8









 







Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.




          “ESOP” means the employee stock ownership plan created pursuant to the terms of the
ESOP Plan and Trust Document.




          “ESOP Plan and Trust Document” means the Argo-Tech Corporation Employee Stock
Ownership Plan and Trust Agreement, dated May 17, 1994, between the Borrower and GreatBanc Trust
Company in its capacity as trustee of the ESOP.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.16(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive





9









 







additional amounts from the Borrower with respect to such withholding tax pursuant to Section
2.16(a).




          “Existing Credit Agreement”, “Existing Revolving Loans”, and “Existing
Term Loans” have the respective meanings given such terms in the Recitals hereto.




          “Existing Letters of Credit” has the meaning given such term in the Recitals hereto
and shall include any Existing Letter of Credit after giving effect to any extension of the
expiration date thereof effective after the Fourth Restatement Effective Date.




          “Existing Term Loan Lender” means a Lender with an outstanding Existing Term Loan.




          “Existing Term Loan Maturity Date” means June 23, 2009.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Financial Officer” means the chief financial officer or treasurer of the Borrower.




          “Fixed Charge Capital Expenditures” means, for any period, Capital Expenditures for
such period, other than any Capital Expenditure (or portion thereof) that (i) is made with (a) the
proceeds of capital contributed to the Borrower or one of its consolidated Subsidiaries not more
than five (5) Business Days prior to such Capital Expenditure, (b) the proceeds of the sale of
assets replaced by such Capital Expenditure, but only to the extent that such proceeds were not
included as income in determining Consolidated Net Income for such period, (c) the proceeds of any
third-party reimbursement in respect of the capital asset in question, such as insurance proceeds
or lessor rebate, but only to the extent that such third-party reimbursement was not included as
income in determining Consolidated Net Income for such period, or (d) the proceeds of Capital Lease
Obligations or other Indebtedness, other than Revolving Loans, or (ii) is part or all of a
Permitted Acquisition.




          “Fixed Charge Coverage Ratio” means, for any period, the ratio of (a) remainder of (i)
Adjusted EBITDA, minus (ii) Fixed Charge Capital Expenditures, and minus (iii) the aggregate amount
of income tax expense paid in cash net of refunds received to (b) the sum of (i) Consolidated
Interest Expense (other than the portion thereof, if any, consisting of annual agency fees or fees
and expenses paid in connection with the Effective Date Transactions) paid in cash (net of interest
income), plus (ii) scheduled payments of any and all of the Consolidated Term Loans after the
Fourth Restatement Effective Date (and after giving effect to any prepayments affecting such
scheduled payments), in each case for such period, plus (iii) Restricted Payments by the Borrower
to the extent not otherwise deducted or expensed in computing Consolidated




10









 







Net Income, other than Restricted Payments pursuant to Sections 6.08(a)(iii) and
6.08(a)(iv)(F), and (iv) plus Permitted Management Fees paid in cash.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the District of
Columbia.




          “Fourth Restatement Effective Date” means the date as of which the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement is effective.




          “Fourth Restatement Term Loan” has the meaning assigned to such term in the Section
2.01(c).




          “Fourth Restatement Term Loan Lender” means, as of the effectiveness of this
Agreement, each of the Lenders party hereto upon such effectiveness and, thereafter, a Lender with
an outstanding Fourth Restatement Term Loan.




          “Fourth Restatement Term Loan Maturity Date” means June 23, 2009.




          “GAAP” means accounting principles generally accepted in the United States of America,
consistently applied.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided that the term “Guarantee” shall not include endorsements for collection or deposit
in the ordinary course of business.




11









 








          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




          “Hedging Agreement” means any interest rate hedging agreement entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating
rate to another floating rate or otherwise) with respect to any interest-bearing liability or
investment; foreign currency exchange agreement; commodity price protection agreement; or other
interest or currency exchange rate or commodity price hedging arrangement.




          “Holdco 2005 Notes” means the Senior Discount Notes issued by Holdings in connection
with the Purchase Documents that (i) do not require the current payment of accrued interest prior
to the date that is 90 days after the Revolving Maturity Date, the Existing Term Loan Maturity Date
or the Fourth Restatement Term Loan Maturity Date (if they are different, whichever is latest),
(ii) do not require the payment of principal prior to the date that is 365 days after the Revolving
Maturity Date, the Existing Term Loan Maturity Date or the Fourth Restatement Term Loan Maturity
Date (if they are different, whichever is latest), and (iii) otherwise contain terms with respect
to the obligations of and restrictions on the issuer that are consistent with those prevailing in
the high-yield debt market at the time of issuance and are of the nature contained in the June 2004
Notes Documents.




          “Holdings” means AT Holdings Corporation, a Delaware corporation.




          “Holdings Included Indebtedness” has the meaning assigned to such term in clause (ii)
of the definition of Total Debt.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges (as distinct from so-called late charges or late fees) are
customarily paid, (d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding accounts
payable and accrued expenses incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all reimbursement
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.




12









 








          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnity, Subrogation and Contribution Agreement” means the Amended and Restated
Indemnity, Subrogation and Contribution Agreement, of even date with the Existing Credit Agreement,
as amended, supplemented or otherwise modified from time to time, among the Borrower, Holdings, the
Subsidiary Loan Parties and the Administrative Agent.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing, Existing Term Borrowing, Fourth Restatement Term Borrowing or Added Term
Borrowing in accordance with Section 2.06.




          “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
fiscal quarter of the Borrower, as such fiscal quarter-ends are identified on Schedule 1.01(b)
hereto, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the first day of such
Interest Period.




          “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that




          (i) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day, and




          (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period.




          For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.




          “Inventory” has the meaning assigned to such term in the Security Agreement.




          “Issuing Bank” means National City Bank, in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section 2.04(i). The Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by an Affiliate
of the Issuing Bank, by another Lender or by an Affiliate of another Lender, in which case the term
“Issuing Bank” shall include any such Lender (which, on the Fourth Restatement Effective Date is
JPMorgan Chase Bank, N.A.) or Affiliate with respect to Letters of Credit issued by such Lender or
Affiliate.




13









 








          “June 2004 Notes” means, collectively, the “91/4% Senior Notes, Series A, due 2011” and
the “91/4% Senior Notes, Series B, due 2011” issued on the Third Restatement Effective Date (as
defined in the Existing Credit Agreement) in the aggregate face principal amount of $250,000,000
(without giving effect to any purchase accounting adjustments) and any substantially identical
notes issued in replacement therefore pursuant to the June 2004 Note Documents, as from time to
time amended, waived, supplemented or modified in accordance with Section 6.11, and which term
shall include additional issuances of notes by the Borrower after the Fourth Restatement Effective
Date under and pursuant to the June 2004 Notes Documents and pursuant to Section 6.11. Except
where the context otherwise requires, the term “June 2004 Notes” shall be deemed to include any and
all promissory notes evidencing Put Refinancing Indebtedness.




          “June 2004 Notes Documents” means the indenture under which the June 2004 Notes are
issued and all other instruments, agreements and documents evidencing, guaranteeing or providing
for the terms and conditions of the June 2004 Notes, as from time to time amended, waived,
supplemented or modified in accordance with Section 6.11. Except where the context otherwise
requires, the term “June 2004 Notes Documents” shall be deemed to include any and all indentures,
instruments, agreements and documents evidencing, guaranteeing or providing for the terms and
conditions of the Put Refinancing Indebtedness.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at
such time.




          “Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Acceptance.




          “Letter of Credit” means any Existing Letter of Credit and any letter of credit issued
pursuant to this Agreement.




          “Leverage Ratio” means, on any date, the ratio of (a) Total Debt as of such date to
(b) Adjusted EBITDA for the period of four consecutive fiscal quarters of the Borrower, as the case
may be, (i) ending on such date (if such date is the last day of a fiscal quarter) or (ii) most
recently ended prior to such date (if such date is not the last day of a fiscal quarter), all
determined on a consolidated basis, except as expressly provided in this Agreement, in accordance
with GAAP.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Telerate Service (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the




14









 







Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m.,
Cleveland, Ohio time, two Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the “LIBO Rate” with respect
to such Eurodollar Borrowing for such Interest Period shall instead be the average (rounded up to
the nearest sixth decimal point) of the rates at which U.S. dollar deposits of in the approximate
amount of such Eurodollar Borrowing are offered to National City Bank (or other Lender selected as
a reference bank by the Administrative Agent and the Required Lenders) in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, for contracts which would be entered into at the commencement of such
Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities. The term “Lien” shall not be
construed to include (i) a lessor’s (or sublessor’s) or licensors (or sub-licensor’s) interest
under and pursuant to an operating (or so called ‘true’) lease or license under which Holdings, the
Borrower or a Subsidiary is lessee (or sublessee) or (ii) a lessee’s (or sublessee’s) or licensee’s
(or sub-licensee’s) interest under and pursuant to an operating (or so called ‘true’) lease or
license permitted by this Agreement and under which Holdings, the Borrower or a Subsidiary is
lessor (or sublessor) or licensor (or sub-licensor).




          “Loan Documents” means this Agreement, the promissory notes, if any, executed and
delivered pursuant to Section 2.08(e), the Parent Guarantee Agreement, the Subsidiary Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement, the Security Documents and any
intercreditor or subordination agreement in respect of Indebtedness of a Loan Party (including,
without limitation, subordination provisions contained in documents evidencing or governing
Subordinated Indebtedness).




          “Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.




          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition, financial or otherwise, of Holdings, the Borrower and the Subsidiaries
taken as a whole, (b) the ability of one or more Loan Parties to perform any of their obligations
under the Loan Documents that, taken as a whole, are material or (c) the rights of or benefits
available to the Lenders under one or more Loan Documents that, taken as a whole, are material.




          “Material Indebtedness” means (i) Indebtedness under the June 2004 Notes, (ii) other
Indebtedness (other than the Loans and Letters of Credit) in an aggregate principal amount




15









 







exceeding $5,000,000, or (iii) obligations in respect of one or more Hedging Agreements in an
aggregate principal amount exceeding $5,000,000, of any one or more of Holdings, the Borrower and
its Subsidiaries. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of Holdings, the Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings,
the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.




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




          “Mortgage” means a mortgage, deed of trust, assignment of leases and rents, leasehold
mortgage or other security document granting a Lien on any Mortgaged Property to secure the
Obligations. Each Mortgage shall be satisfactory in form and substance to the Collateral Agent.




          “Mortgaged Property” means the California Property, the Ohio Property and each other
parcel of real property and improvements thereto with respect to which a Mortgage is granted
pursuant to Section 5.12 or 5.13.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Proceeds” means, with respect to any event (a) the cash proceeds received in
respect of such event including (i) any cash received in respect of any non-cash proceeds, but only
as and when received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the case of
a condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of
(i) all reasonable fees and out-of-pocket expenses paid by Holdings, the Borrower and the
Subsidiaries to third parties in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback transaction or a
casualty or other insured damage or condemnation or similar proceeding), the amount of all payments
required to be made by Holdings, the Borrower and the Subsidiaries as a result of such event to
repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by Holdings, the Borrower and the Subsidiaries, and the amount of any
reserves established by Holdings, the Borrower and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event occurred or the
next succeeding year and that are directly attributable to such event (as determined reasonably and
in good faith by the chief financial officer of the Borrower).




          “Obligations” has the meaning assigned to such term in the Security Agreement.




          “Ohio Property” means that parcel of land and buildings and improvements situated
thereon known as 23555 Euclid Avenue, Euclid, Ohio.




          “Other Taxes” means any and all current or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made under any
Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.




16









 








          “Parent Guarantee Agreement” means the Amended and Restated Parent Guarantee Agreement
of even date with the Existing Credit Agreement, as amended, supplemented or otherwise modified
from time to time, made by Holdings in favor of the Administrative Agent for the benefit of the
Secured Parties.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Perfection Certificate” means a certificate in the form of Annex 1 to the Security
Agreement or any other form approved by the Collateral Agent.




          “Permitted Acquisition” means any acquisition by the Borrower or a Subsidiary Loan
Party of all or substantially all the assets of, or all the shares of capital stock of or other
equity interests in, a Person or division or line of business of a Person if, immediately after
giving effect thereto, (i) both of the Restricted Transaction Conditions shall have been satisfied
immediately prior and after giving effect to such acquisition, (ii) all transactions related
thereto are consummated in accordance with applicable laws, (iii) all the capital stock of any
Subsidiary formed for the purpose of or resulting from such acquisition are owned directly by the
Borrower or a Subsidiary Loan Party and all actions required to be taken, if any, with respect to
such acquired or newly formed Subsidiary under Sections 5.12 and 5.13 have been taken, (iv) the
Borrower and its Subsidiaries are in compliance, on a pro forma basis after giving effect to such
acquisition (and taking into account all appropriate assets, liabilities and items of income and
expense of any acquired entity or acquired assets for any applicable period prior to the
acquisition thereof) with the covenants contained in Sections 6.12 and 6.13 recomputed as at the
last day of the most recently ended fiscal quarter of the Borrower as of which the Borrower is then
obligated to have delivered a balance sheet and related statements of operations pursuant to
Section 5.01(a) or (b), as applicable, as if such acquisition had occurred on the first day of each
relevant period for testing such compliance, (v) in the case of an acquisition of assets, such
assets are to be used, and in the case of an acquisition of capital stock or other equity
interests, the Person so acquired is engaged in, the same or a related line of business as the
Borrower and the Subsidiaries and other business activities incidental thereto, (vi) the Borrower
has delivered to the Administrative Agent an officers’ certificate to the effect set forth in
clauses (i) and (iv) above, and clause (vii) below, together with all relevant financial
information for the Person or assets to be acquired, and (vii) none of Holdings, the Borrower nor
any Subsidiary, including any acquired or newly formed Subsidiary, shall be liable for any
Indebtedness other than as permitted by Section 6.01.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.04 or, as of any date of determination, not then required to be
paid pursuant to Section 5.04;




     (b) contractual or statutory liens in favor of lessors of real property and carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations that are not overdue by
more than 90 days or are being contested in compliance with Section 5.04;



17









 






     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII;




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;




     (g) rights of the government of the United States of America or any agency or
instrumentality thereof in inventory or equipment, arising out of any contract between the
Borrower or any Subsidiary and such government, agency or instrumentality or pursuant to any
contract entered into with, or received from, any higher-tier subcontractor or prime
contractor of such government, agency or instrumentality, whether by operation of law or the
terms of such contract, or by virtue of the receipt by the Borrower or its predecessor or
such Subsidiary of progress or advance payments or reimbursement of costs in connection
therewith;




     (h) Liens arising in the ordinary course of business under Article 2 and Section 4-210
of the Uniform Commercial Code, as adopted in the State of Ohio;




     (i) Liens on property of a Foreign Subsidiary so long as the aggregate principal amount
of all Indebtedness secured by such Liens does not exceed $2,500,000 as to all Foreign
Subsidiaries taken together;




     (j) Liens attaching to earnest money deposits (or equivalent deposits otherwise named)
made in connection with proposed Permitted Acquisitions;




     (k) the interest of a proposed purchaser under an agreement to sell or otherwise
dispose of property permitted under the terms of this Agreement;




     (l) (i) set-off rights or (ii) Liens arising in connection with repurchase agreements
that are Permitted Investments;




     (m) the interest of a purchaser of uncollectible or past due Accounts in the ordinary
course of business;




     (n) Liens arising pursuant to law in favor of a Governmental Authority in connection
with the importation of goods in the ordinary course of business;



18









 






     (o) Liens existing on the Fourth Restatement Effective Date and set forth on Schedule
1.01(c) hereto;




     (p) Liens securing insurance premium Indebtedness permitted under Section
6.01(a)(xiii); and




     (q) in addition to the Liens and interests described in clauses (a) through (p),
inclusive, above, other Liens securing Indebtedness and other obligations, so long as the
aggregate principal amount of all such Indebtedness and other obligations, as to the
Borrower and its Subsidiaries taken together does not at any time exceed $5,000,000.


provided that, except as expressly provided in clauses (i), (o), (p) and (q), above, the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.




          “Permitted Investments” means:





     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, a rating of at least A-1 or the
equivalent thereof from S&P or P-1 or the equivalent thereof from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i) any domestic office
of any commercial bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not less than
$500,000,000, (ii) any domestic office of any commercial bank organized under the laws of a
foreign jurisdiction that has a rating of at least AA by S&P or Aa by Moody’s and (iii) any
Lender;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;




     (e) investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (a), (b) and (c), above;




     (f) investments in money market funds access to which is provided as part of “sweep”
accounts maintained with a Lender;




     (g) investments in industrial development revenue bonds or floating-rate taxable bonds
which (i) “re-set” interest rates no less frequently than quarterly, (ii) are entitled to
the benefit of a remarketing arrangement with an established broker dealer, and (iii) are
supported by a direct pay letter of credit covering principal and accrued interest which is



19









 






issued by a bank having, on such date, a short-term commercial paper rating of at least
A-1 or the equivalent thereof from S&P or P-1 or the equivalent thereof from Moody’s;




     (h) investments in pooled funds or investment accounts consisting of investments of the
nature described in the foregoing clause (g);




     (i) receivables owing to the Borrower or any Subsidiary created or acquired in the
ordinary course of business or payable or dischargeable in accordance with customary trade
terms; provided, however, that such trade terms may include such concessionary terms as the
Borrower or such Subsidiary deems reasonable under the circumstances;




     (j) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;




     (k) the investment by Holdings in the Tracker Sub described on Schedule 1.01(d) hereto
and additional contributions to the capital thereof (the proceeds of which were received
from the Borrower), so long as the aggregate amount of such contributions made on or after
the Fourth Restatement Effective Date does not exceed $3,000,000;




     (l) investments existing on the Fourth Restatement Effective Date and set forth on
Schedule 1.01(d) hereto;




     (m) investments by Foreign Subsidiaries of the type described in clauses (a) through
(h), inclusive, above, that are issued by a foreign Governmental Authority, foreign bank, or
other issuer, so long as the credit quality ratings of such investments is equivalent to
that required pursuant to said clauses (a) through (h); and




     (n) investments made with the proceeds of capital contributed to, as the case may be,
Holdings, the Borrower and one of its consolidated Subsidiaries not more than five (5)
Business Days prior to such investment.



          “Permitted Management Agreement” means the management agreement executed in
conjunction with the Effective Date Transactions and in force on the Fourth Restatement Effective
Date.




          “Permitted Management Fees” means management or similar compensation payable by either
or both of Holdings and the Borrower pursuant to the Permitted Management Agreement.




          “Permitted Owners” means (a) Mr. Masashi Yamada and members of his immediate family,
(b) corporations and other entities that are Controlled by one or more of the persons referred to
in clause (a), (c) V.G.A.T. Investors, LLC, Vaughn Merger Sub, Inc. and their respective
Affiliates, and (d) trusts for the sole benefit of one or more of the Persons referred to in clause
(a) or (c).




          “Permitted S-X Adjustments” means adjustments to Consolidated Net Income for
identified cost savings in respect of an Acquired Business that (i) would be permitted in a pro




20









 







forma financial statement prepared in compliance with Regulation S-X. of the Securities and
Exchange Commission and (ii) are verified by the Administrative Agent or an independent third party
reasonably acceptable to the Administrative Agent.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Pledge Agreement” means the Amended and Restated Pledge Agreement of even date with
the Existing Credit Agreement, as amended, supplemented or otherwise modified from time to time,
among the Borrower, Holdings, the Subsidiaries party thereto and the Collateral Agent for the
benefit of the Secured Parties.




          “Prepayment Event” means:





     (a) any sale, transfer or other disposition or series of related sales, transfers or
other dispositions (including pursuant to a sale and leaseback transaction) of any property
or asset (including capital stock) of Holdings, the Borrower or any Subsidiary, other than
(i) dispositions described in clauses (a), (b) and (f) of Section 6.05, (ii) the sale of the
cryogenics business, (iii) the sale of non-core assets acquired in connection with a
Permitted Acquisition, and (iv) other dispositions resulting in aggregate Net Proceeds not
exceeding $3,000,000; or




     (b) any casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of Holdings, the
Borrower or any Subsidiary, or




     (c) the issuance by Holdings, the Borrower or any Subsidiary of any equity securities,
or the receipt by Holdings, the Borrower or any Subsidiary of any capital contribution,
other than (i) any such issuance to a Permitted Owner or any Person with pre-emptive rights
with respect to such equity securities or a holder who acquired stock as purchase
consideration paid by a Loan Party in a Permitted Acquisition, (ii) any such issuance to a
Person who is not a Permitted Owner or a Person with pre-emptive rights with respect to such
equity securities or a holder who acquired stock as purchase consideration paid by a Loan
Party in a Permitted Acquisition, so long as, after giving effect to such issuance and all
other such issuances under this clause (ii) occurring after the Fourth Restatement Effective
Date, Persons acting together as a group who are not Permitted Owners or Persons with
pre-emptive rights with respect to such equity securities or holders who acquired stock as
purchase consideration paid by a Loan Party in a Permitted Acquisition do not, directly or
indirectly, Control an aggregate of more than twenty percent (20%) of voting stock of any
Loan Party, (iii) in connection with a Permitted Acquisition, a Permitted Investment or a
Restricted Payment permitted



21









 






pursuant to Section 6.08, (iv) issuances of stock as purchase consideration paid by a
Loan Party in a Permitted Acquisition, and (iv) any such issuance of equity securities to,
or receipt of any such capital contribution from, Holdings, the Borrower or a Subsidiary;
provided that, unless a Default has occurred and is continuing, an event of the type
described in this clause (c) shall not constitute a Prepayment Event if all of the principal
of and interest on the Consolidated Term Loans shall have been paid in full; or




     (d) the incurrence by Holdings, the Borrower or any Subsidiary of any Indebtedness,
other than Indebtedness permitted under Section 6.01;


provided that, at the option of the Borrower, so long as the Net Proceeds of any event described in
clause (a) or (b), above, are deposited upon receipt with the Collateral Agent pursuant to a
security and control agreement reasonably satisfactory to the Collateral Agent, the Collateral
Agent will, at any time and from time to time during the 360 day period (or any longer period
provided for in Section 5.08(c) with respect to events referred to in such Section) after such
event (so long as no Default then exists), disburse such Net Proceeds to the Borrower or a
Subsidiary to make one or more Permitted Acquisitions (in the case of clause (a) above), or to
repair, restore or replace such property or asset (in the case of clause (b) above, provided that
such disbursement shall be on terms reasonably satisfactory to the Collateral Agent) and in each
such case, only the portion of such Net Proceeds, if any, continuing to be held by the Collateral
Agent at the end of such 360 day period (or such longer period described above) shall be deemed to
be Net Proceeds of a Prepayment Event.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by National City Bank as its prime rate (or equivalent rate otherwise named) in effect at its
principal office in Cleveland, Ohio; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.




          “Purchase Documents” has the meaning given such term in the Recitals hereto.




          “Put Refinancing Indebtedness” means Indebtedness incurred by the Borrower and its
Subsidiaries that are guarantors of the June 2004 Notes solely for the purpose of redeeming, and
not greater in principal amount than the amount necessary to redeem, June 2004 Notes presented for
mandatory redemption by reason of the “Change of Control” (as defined in the June 2004 Notes
Documents) that is to occur on the Fourth Restatement Effective Date that is on terms in all
material respects the same as those governing the June 2004 Notes and that does not breach any
covenant in the June 2004 Notes Documents or otherwise cause the occurrence of a “Default” or
“Event of Default” (as those two terms are defined therein).




          “Quarterly Payment Date” means the last day of each fiscal quarter of the Borrower
during the term of this Agreement, as such fiscal quarter-ends are identified on Schedule 1.01(b)
hereto.




          “Register” has the meaning set forth in Section 9.04.




          “Regulation U” means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




22









 








          “Regulation X” means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Required Lenders” means, at any time, Lenders having Revolving Exposures,
Consolidated Term Loans and unused Revolving Commitments representing more than 50% of the sum of
the total Revolving Exposures, outstanding Consolidated Term Loans and unused Revolving Commitments
at such time.




          “Restatement Transactions” means the execution and delivery of this Agreement by each
Person party hereto, the satisfaction of the conditions to the effectiveness hereof, and the
consummation of the transactions contemplated hereby, including the amendments to the Existing
Credit Agreement effected by the restatement thereof.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any shares of any class of capital stock of Holdings,
the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of Holdings, the
Borrower or any Subsidiary or any option, warrant or other right to acquire any such shares of
capital stock of Holdings, the Borrower or any Subsidiary.




          “Restricted Transaction Conditions” means, as of any date, both of the following shall
be true: (i) that as of such date and after giving effect to the Restricted Payment, Permitted
Acquisition, prepayment or other transaction in respect of which the Restricted Transaction
Conditions are being referenced, there exists no Default, and (ii) that, after giving effect to the
Restricted Payment, Permitted Acquisition, prepayment or other transaction in respect of which the
Restricted Transaction Conditions are being referenced, the Borrower shall have delivered to the
Administrative Agent a certificate that the aggregate of the Borrower’s consolidated cash-on-hand,
plus the Revolving Availability is greater than $10,000,000.




          “Revolving Availability” means, as of any date of determination, an amount equal to
the aggregate amount of the Lenders’ Revolving Commitments on such date, minus (ii) the
aggregate amount of the Lenders’ Revolving Exposures on such date.




          “Revolving Availability Period” means the period from and including the Fourth
Restatement Effective Date to but excluding the earlier of the Revolving Maturity Date and the date
of termination of the Revolving Commitments.




          “Revolving Borrowing” means a Borrowing comprised of or in respect of Revolving Loans.




          “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder,
expressed as an amount representing the maximum aggregate amount of such




23









 







Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07, (b) increased pursuant to Section 2.20, and (c) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
aggregate amount of the Lenders’ Revolving Commitments as of the Fourth Restatement Effective Date
is $40,000,000.




          “Revolving Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such time.




          “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.




          “Revolving Loan” means a Loan made pursuant to Section 2.01(a).




          “Revolving Maturity Date” means June 23, 2009.




          “S&P” means Standard & Poor’s.




          “Secured Parties” shall have the meaning assigned to such term in the Security
Agreement.




          “Secured Leverage Ratio” means, on any date, the ratio of (a) that portion of Total
Debt as of such date that is secured by a Lien on any property or interest therein of the Borrower
or any of its Subsidiaries to (b) Adjusted EBITDA for the period of four consecutive fiscal
quarters of the Borrower, as the case may be, (i) ending on such date (if such date is the last day
of a fiscal quarter) or (ii) most recently ended prior to such date (if such date is not the last
day of a fiscal quarter), all determined on a consolidated basis, except as expressly provided in
this Agreement, in accordance with GAAP.




          “Security Agreement” means the Amended and Restated Security Agreement of even date
with the Existing Credit Agreement, as amended, supplemented or otherwise modified from time to
time, among the Borrower, the Subsidiary Loan Parties and the Collateral Agent for the benefit of
the Secured Parties.




          “Security Documents” means the Security Agreement, the Pledge Agreement, the Mortgages
and each other security agreement or other instrument or document executed and delivered pursuant
to Section 5.12 or 5.13 to secure any of the Obligations.




          “Sold Business” means any Person, property, business or assets comprising a division
or business line sold, transferred or otherwise disposed of by the Borrower or any Subsidiary
thereof to a Person who is not an Affiliate, other than in the ordinary course of business.




          “Statutory Reserve Rate” means 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 of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the




24









 







Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such
reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any change in such reserve
percentage.




          “Stockholders’ Agreement” means the stockholders’ agreement executed in conjunction
with the Effective Date Transactions and in force on the Fourth Restatement Effective Date in form
reasonably satisfactory to the Agent.




          “Subordinated Indebtedness” shall mean any Indebtedness that (i) does not require any
principal payment prior to December 15, 2009 and (ii) has been subordinated to the Obligations in
right and time of payment upon terms set forth on Exhibit B hereto; provided that, notwithstanding
the foregoing, Subordinated Indebtedness incurred as part of the purchase consideration in a
Permitted Acquisition may provide for principal payment prior to December 15, 2009 so long as the
aggregate unpaid principal balance of all such Subordinated Indebtedness of the Borrower and its
Subsidiaries incurred in connection with Permitted Acquisitions that provides for principal payment
prior to December 15, 2009 does not at any time exceed an amount equal to 10% of Adjusted EBITDA
for the preceding four consecutive quarterly periods most recently ended.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held.




          “Subsidiary” means any subsidiary of Holdings or the Borrower, as the context
requires.




          “Subsidiary Guarantee Agreement” means the Amended and Restated Subsidiary Guarantee
Agreement of even date with the Existing Credit Agreement, as amended, supplemented or otherwise
modified from time to time, made by the Subsidiary Loan Parties in favor of the Administrative
Agent for the benefit of the Secured Parties. Subsidiary Loan Parties as of the Fourth Restatement
Effective Date are set forth on Schedule 3.12.




          “Subsidiary Loan Party” means any Subsidiary of the Borrower other than (a) any
Foreign Subsidiary, and (b) immaterial Subsidiaries set forth on Schedule 1.01(e) so long as such
immaterial Subsidiaries have no operating assets or earnings other than operating assets and
earnings as of the Fourth Restatement Effective Date.




25









 








          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Total Debt” means, the aggregate of, but without duplication, and calculated without
giving effect to purchase accounting adjustments, (i) with respect to the Borrower and its
Subsidiaries on a consolidated basis at any time, all Indebtedness of the Borrower and its
Subsidiaries that at such time would be required to be reflected as a liability for borrowed money
on a consolidated balance sheet of the Borrower and its consolidated Subsidiaries prepared in
accordance with GAAP and (ii) with respect to Holdings and its Subsidiaries (other than the
Borrower and its Subsidiaries) on a consolidated basis at any time, all Indebtedness of Holdings
and its Subsidiaries (other than the Borrower and its Subsidiaries) (A) that at such time would be
required to be reflected as a liability for borrowed money on a consolidated balance sheet of
Holdings and its Subsidiaries (other than the Borrower and its Subsidiaries) prepared in accordance
with GAAP and (B) that requires that interest accrued on such Indebtedness to be paid in cash at
any time before the earlier of (x) the date that is 365 days after such time and (y) the date that
is 90 days after the Revolving Maturity Date, the Existing Term Loan Maturity Date, the Fourth
Restatement Term Loan Maturity Date or the Added Term Loan Maturity Date (if they are different,
whichever is latest) (“Holdings Included Indebtedness”).




          “Tracker Sub” means Argo Tracker Corporation, a Delaware corporation.




          “TRW” means TRW Inc. and its successors and permitted assigns under the TRW Agreement,
including, without limitation, any division or subsidiary of Northrop Grumman Corporation.




          “TRW Agreement” means that certain Agreement of Purchase and Sale between Agnem
Holdings, Inc. and TRW, dated as of August 5, 1986, as amended by (a) that certain letter agreement
dated September 5, 1986, (b) that certain Agreement dated as of September 16, 1986, (c) that
certain Agreement dated as of September 26, 1986, (d) that certain Agreement dated as of October 1,
1986, (e) that certain letter agreement dated as of October 10, 1986, (f) that certain letter
agreement dated October 15, 1986, and (g) that certain Amendment No. 6 to Purchase Agreement dated
as of October 20, 1986; such term shall also include any other amendments or modifications thereof
entered into in accordance with Section 6.11.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Revolving Borrowing”) or




26









 







by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).




          SECTION 1.03. 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, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




ARTICLE II



The Credits




          SECTION 2.01. Commitments; Outstanding Loans. (a) Upon the effectiveness of this
Agreement, the terms and conditions governing Existing Revolving Loans will be amended and restated
in their entirety to provide for a revolving credit facility under which, subject to the terms and
conditions set forth in this Agreement, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment.
The amount of each Revolving Lender’s Revolving Commitment as of the Fourth Restatement Effective
Date is set forth on Schedule 2.01(a) and thereafter, the amount of each
Revolving Lender’s Revolving Commitment is set forth in the Assignment and Acceptance or
Commitment Acceptance pursuant to which




27









 







such Lender shall have assumed its Revolving Commitment or
increase thereto. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans.




          (b) The principal balance of the Existing Term Loan of each Existing Term Loan Lender, as of
the Fourth Restatement Effective Date, is set forth on Schedule 2.01(b).




          (c) Upon the effectiveness of this Agreement, each Fourth Restatement Term Loan Lender shall
advance to the Borrower an additional term loan in the amount set forth opposite the name of such
Fourth Restatement Term Loan Lender on Schedule 2.01(c) (each a “Fourth Restatement Term Loan” and,
collectively, the “Fourth Restatement Term Loans”).




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of the same Type made by the Revolving Lenders ratably in accordance with
their respective Applicable Percentage. The failure of any Revolving Lender to make any Revolving
Loan required to be made by it shall not relieve any other Revolving Lender of its obligations
hereunder; provided that the Revolving Commitments are several and no Revolving Lender
shall be responsible for any other Revolving Lender’s failure to make Revolving Loans as required.




          (b) Subject to Section 2.13, each Revolving Borrowing and Class of Consolidated Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $100,000 and not less than
$2,500,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e). Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of eight (8) Eurodollar Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity Date, Existing Term Loan Maturity Date,
Fourth Restatement Term Loan Maturity Date or Added Term Loan Maturity Date, as applicable.




          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or Class of
Consolidated Term Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., Cleveland, Ohio time, three Business
Days before the date of the proposed Borrowing, or (b) in




28









 







the case of an ABR Borrowing, not later
than 11:00 a.m., Cleveland, Ohio time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.04(e) may be given not later than 10:00 a.m.,
Cleveland, Ohio time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:





     (i) whether the requested Borrowing is to be a Revolving Borrowing or Existing Term
Borrowing, Fourth Restatement Term Borrowing or Added Term Borrowing;




     (ii) the aggregate amount of such Borrowing;




     (iii) the date of such Borrowing, which shall be a Business Day;




     (iv) subject to the second sentence of Section 2.02(b), whether such Borrowing is to be
an ABR Borrowing or a Eurodollar Borrowing;




     (v) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and




     (vi) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.05.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Letters of Credit. (a) General. The Existing Letters of
Credit are identified on Schedule 2.04 hereto. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing





29









 







Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $30,000,000, and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Maturity Date.




          (d) Participations. By the issuance of a Letter of Credit, including without
limitation the previous issuance of an Existing Letter of Credit, (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of the Issuing
Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to
such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter
of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the
Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, Cleveland,
Ohio time, on the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Cleveland, Ohio time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
12:00 noon, Cleveland, Ohio time, on (i) the Business Day that the Borrower
receives such notice, if such notice is received prior to 10:00 a.m., Cleveland, Ohio time, on
the day of receipt, or (ii) the Business Day immediately following the day that the Borrower
receives





30









 







such notice, if such notice is not received prior to such time on the day of receipt;
provided that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the
Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof
and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment
then due from the Borrower, in the same manner as provided in Section 2.05 with respect to Loans
made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then
to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or




31









 







willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such Letter of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Lenders with respect to any such LC Disbursement.




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.




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




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative Agent or the






32









 







Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to 105% of the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be
applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured or waived.




          SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, Cleveland, Ohio time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like funds,
to an account of the Borrower maintained with the Administrative Agent in Cleveland, Ohio and
designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.04(e) shall
be remitted by the Administrative Agent to the Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective





33









 







Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.




          SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing and Consolidated
Term Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in
the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.




          (b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02 and paragraph (f) of this Section:





     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




34









 








          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          (f) A Borrowing of any Class may not be converted to or continued as a Eurodollar Borrowing
if after giving effect thereto (i) the Interest Period therefor would commence before and end after
a date on which any principal of the Loans of such Class is scheduled to be repaid and (ii) the sum
of the aggregate principal amount of outstanding Eurodollar Borrowings of such Class with Interest
Periods ending on or prior to such scheduled repayment date plus the aggregate principal amount of
outstanding ABR Borrowings of such Class would be less than the aggregate principal amount of Loans
of such Class required to be repaid on such scheduled repayment date.




          SECTION 2.07. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Revolving Commitments shall terminate on the Revolving Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Revolving
Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an
amount that is an integral multiple of $100,000 and not less than $1,000,000 and (ii) the Borrower
shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans in accordance with Section 2.10, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.




          (c) In the event that, on the date on which any prepayment would be required pursuant to
Section 2.10(c), no Consolidated Term Borrowings remain outstanding or the amount of the prepayment
required by Section 2.10(c), exceeds the aggregate principal amount of Consolidated Term Borrowings
then outstanding, the Borrower shall reduce the Revolving Commitments, ratably according to the
Applicable Percentages, by an amount equal to the excess of the required prepayment over the
principal amount, if any, of Consolidated Term Borrowings actually prepaid.




          (d) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) of this Section, or any required reduction of the
Revolving Commitments under paragraph (c) of this Section, at least three Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the





35









 







Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the Revolving
Commitments shall be permanent. Each reduction of the Revolving Commitments shall be made ratably
among the Lenders in accordance with their respective Applicable Percentage.




          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date
and (ii) to the Administrative Agent for the account of each Lender the then unpaid principal
amount of each Consolidated Term Loan of such Lender as provided in Section 2.09. Each repayment
of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.




          (e) Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times be represented by one or
more promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




          SECTION 2.09. Amortization of Consolidated Term Loans. (a) Subject to adjustment
pursuant to paragraph (b) of this Section 2.09 and Section 2.10(c), (i) the Borrower shall repay
Existing Term Borrowings from and after the Fourth Restatement Effective Date in




36









 







(A) twelve (12) consecutive quarter-annual installments, each in the aggregate principal
amount of One Hundred Eighty-seven Thousand Five Hundred Dollars ($187,500), on each Quarterly
Payment Date, commencing with October 28, 2005, (B) three (3) consecutive quarter-annual
installments, each in the aggregate principal amount of Three Million Dollars ($3,000,000), on each
Quarterly Payment Date, commencing with October 24, 2008 and (C) one installment, on the Existing
Term Loan Maturity Date, in the aggregate principal amount of all Existing Term Borrowings then
remaining unpaid and (ii) the Borrower shall repay Fourth Restatement Term Borrowings from and
after the Fourth Restatement Effective Date in one installment, on the Fourth Restatement Term Loan
Maturity Date, in the aggregate principal amount of all Fourth Restatement Term Borrowings then
remaining unpaid.




          (b) Any prepayment of a Consolidated Term Borrowing on or after the Fourth Restatement
Effective Date shall be applied to reduce the subsequent scheduled repayments of the Consolidated
Term Borrowings to be made pursuant to this Section in the order provided for in the last sentence
of Section 2.10(c), below.




          (c) Prior to any repayment of any Consolidated Term Borrowings hereunder, the Borrower shall
select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m., Cleveland, Ohio
time, three Business Days before the scheduled date of such repayment; provided that each
repayment of Consolidated Term Borrowings shall be applied to repay any outstanding ABR
Consolidated Term Borrowings before any Eurodollar Consolidated Term Borrowings of such Class.
Repayments of Consolidated Term Borrowings shall be accompanied by accrued interest on the amount
repaid.




          SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to the requirements
of paragraphs (e) and (f) this Section; provided that each prepayment of Consolidated Term
Borrowings shall be in an aggregate amount that is an integral multiple of $100,000 and not less
than $1,000,000.




          (b) On any date that the total Revolving Exposures exceed the Total Revolving Commitments, in
the event and on each such occasion, the Borrower shall prepay Revolving Borrowings in an aggregate
amount equal to such excess.




          (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of
Holdings, the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower shall,
immediately after such Net Proceeds are received apply an aggregate amount equal to such Net
Proceeds (i) first, to the prepayment in full of all outstanding Consolidated Term Borrowings and
(ii) second, to the reduction of the Revolving Commitments. Prepayments of the Consolidated Term
Borrowings shall be applied (A) first, to principal installments of the Existing Term Loans due on
the four (4) Quarterly Payment Dates next following such receipt of Net Proceeds in the order of
maturity of such installments, (B) second, to all of the remaining principal installments of the
Existing Term Loans, ratably according to the respective amounts of such remaining installments,
(C) third, to the principal of the Fourth Restatement Term Loans, and (D) fourth, to the principal
installments of the Added Term Loans, in such order as shall





37










 





have be specified in the Added Term Loan Amendment applicable thereto or, in the absence of
such specification, in their inverse order of maturity.




          (d) In the event of any partial reduction of the Revolving Commitments, then (i) at or prior
to the date of such reduction, the Administrative Agent shall notify the Borrower and the Lenders
of the Revolving Exposure after giving effect thereto and (ii) if such Revolving Exposure would
exceed the Revolving Commitments after giving effect to such reduction, then the Borrower shall, on
the date of such reduction, repay or prepay Revolving Borrowings in an amount sufficient to
eliminate such excess.




          (e) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall
select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of
such prepayment pursuant to paragraph (f) of this Section; provided that each prepayment of
Borrowings of any Class shall be applied to prepay ABR Borrowings of such Class before any other
Borrowings of such Class.




          (f) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., Cleveland, Ohio time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Cleveland, Ohio time, one
Business Day before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment; provided that, if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Revolving Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.




          SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Lender a commitment fee, which shall accrue at the Applicable Rate on
the average daily unused amount of the Revolving Commitment of such Lender during the period from
and including the Fourth Restatement Effective Date to but excluding the date on which such
Revolving Commitment terminates. Accrued commitment fees shall be payable in arrears on each
Interest Payment Date and on the date on which the Revolving Commitments terminate, commencing on
the first such date to occur after the Fourth Restatement Effective Date. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes of computing
commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender.




38









 








          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate as interest on Eurodollar Revolving Loans on the average
daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Fourth Restatement
Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at one-fourth of one percent (0.25%) per annum on
the average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Fourth Restatement
Effective Date to but excluding the later of the date of termination of the Revolving Commitments
and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard
fees (other than fronting fees, which shall be payable as specified above) with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees shall be payable in arrears on each Interest
Payment Date, commencing on the first such date to occur after the Fourth Restatement Effective
Date; provided that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).




          (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.




          (d) The Borrower shall pay to the Administrative Agent on the Fourth Restatement Effective
Date for distribution to each Lender a closing fee for such Lender in the amount specified in the
commitment allocation letter between such Lender and either or both of the Joint Lead Arrangers.




          (e) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.




          SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at

39









 








stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (A) in the case of overdue principal of any Loan, two
percent (2%) plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (B) in the case of any other amount, two percent (2%) plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.




          SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:





     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.




          SECTION 2.14. Increased Costs. (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,



40









 







any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.




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




          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 days after receipt
thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.

41









 









          SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including, without limitation, as a result of the requirements of Section 2.10 or of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Revolving Loan or Consolidated Term Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.10(f) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section
2.18, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense
to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.




          SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation
of the Borrower hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by

42









 








the relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.
If the Administrative Agent, any Lender or the Issuing Bank (as the case may be) receives a refund
of any Indemnified Taxes or Other Taxes for which the Borrower has made a payment hereunder, it
shall promptly notify the Borrower thereof and shall promptly upon receipt repay such refund to the
Borrower, without interest and net of any expenses incurred; provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the Issuing Bank (as the case may be),
agrees to return the amount of such refund (plus any penalties, interest or other charges required
to be paid) to the Administrative Agent, such Lender or the Issuing Bank (as the case may be) in
the event the Administrative Agent, such Lender or the Issuing Bank (as the case may be) is
required to repay such refund to the relevant Governmental Authority.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.




          SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The
Borrower shall make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, Cleveland, Ohio time,
on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at its offices at 1900 East
Ninth Street, Cleveland, Ohio, except payments to be made directly to the Issuing Bank as expressly
provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall
be made to the Persons specified therein. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. All payments under
each Loan Document shall be made in dollars.

43









 









          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans,
Consolidated Term Loans or participations in LC Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans, Consolidated Term
Loans and participations in LC Disbursements and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Consolidated Term Loans and
participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans, Consolidated Term Loans and
participations in LC Disbursements; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation.

44









 









          (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or
2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.14 or payments required to
be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.




          SECTION 2.19. Same Indebtedness; Other References.




               (a) This Agreement and the other Loan Documents shall not be deemed to provide for or effect
a novation or repayment and re-advance of any portion of the Existing Revolving Loans, the Existing
Tranche A Term Loans or the Existing Delayed Draw Acquisition Loans now outstanding, it being the
intention of the Borrower and the Lenders hereby that the Indebtedness owing under this Agreement
be and hereby is the same Indebtedness as that owing under the Existing Credit Agreement
immediately prior to the effectiveness hereof. Without



45









 




limiting the generality of the foregoing,
to the extent, if any, not paid prior to the effectiveness of this Agreement, all accrued interest
and fees owing under and pursuant to the Existing Credit Agreement shall be due and payable in full
on the date on which they would have been due and payable pursuant the Existing Credit Agreement.




               (b) Upon the effectiveness of this Agreement as provided in Sections 2.01 and 4.02 hereof,
the Existing Credit Agreement shall be deemed to have been amended and restated in its entirety and
superseded by this Agreement, and any references in any other Loan Document to the Existing Credit
Agreement shall be deemed to refer to this Agreement.



     SECTION 2.20. Optional Increase in Revolving Commitments; Added Term Loans. At any
time prior to the date that is thirty days prior to, as applicable, the Revolving Maturity Date or
the latest of any Added Term Loan Maturity Date, if no Default shall have occurred and be
continuing (or would result after giving effect thereto), the Borrower, may, if it so elects, (i)
increase the aggregate amount of the Revolving Commitments (each such increase to be in an
aggregate amount an integral multiple of $1,000,000 and not less than $5,000,000), (ii) obtain
additional term loan advances (each such term loan to be in an initial principal amount that is an
integral multiple of $1,000,000) that will become part of the Consolidated Term Loans and
Obligations hereunder (each an “Added Term Loan”) or (iii) a combination of both, (I) by
designating one or more financial institutions not theretofore a Lender to become a Lender (such
designation to be effective only with the prior written consent of the Administrative Agent and, in
the case of an increase in the Revolving Commitments, the Issuing Bank, which consents will not be
unreasonably withheld or delayed), (II) by agreeing with one or more existing Lenders that, as
applicable, such existing Lenders’ respective Revolving Commitments shall be increased or such
existing Lenders will advance Added Term Loans, or (III) some combination of both. In the case of
an increase in the aggregate amount of the Revolving Commitments, upon execution and delivery by
the Borrower and each such Lender or other financial institution of an instrument (a
“Commitment Acceptance”) in form reasonably satisfactory to the Administrative Agent, such
existing Lender shall have a Commitment as therein set forth, or such other financial institution
shall become a Lender with a Revolving Commitment as therein set forth, and all the rights and
obligations of a Lender with such a Revolving Commitment hereunder; and in the case of Added Term
Loans, the Borrowers, the Agents and each such Lender providing an Added Term Loan or other
financial institution providing an Added Term Loan shall execute and deliver such amendments to
this Agreement (each an “Added Term Loan Amendment”) and the other Loan Documents and such
additional Loan Documents, in form reasonably satisfactory to, as the case may be, the
Administrative Agent or the Collateral Agent, as may be necessary or appropriate to reflect the
rate or rates of interest applicable thereto and terms of payment thereof and the addition of such
Added Term Loans as Loans and Obligations hereunder; provided, in each instance:



     (a) that the Borrower shall provide prompt notice of such increase or Added Term Loans to the
Administrative Agent, which shall promptly notify the Lenders thereof;



     (b) that the Borrower shall have delivered to the Administrative Agent a copy of the
Commitment Acceptance and each commitment in respect of Added Term Loans;



46









 





     (c) that, before and after giving effect to, as the case may be, such increase or such Added
Term Loans, the representations and warranties of the Borrower and Holdings contained in Article
III of this Agreement shall be true and correct in all material respects; and



     (d) that the Administrative Agent shall have received such evidence (including an opinion of
Borrower’s counsel) as it may reasonably request to confirm (i) the Borrower’s due authorization of
the transactions contemplated by this Section 2.20 and the validity and enforceability of the
obligations of the Borrower resulting therefrom and (ii) that such increase will not violate or
result in a default under June 2004 Note Documents or any other Material Indebtedness.



     On the date of any such increase, the Borrower shall be deemed to have represented to the
Administrative Agent and the Lenders that the conditions set forth in clauses (a) through (d) above
have been satisfied.



     Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.20:




     (x) within five Business Days, in the case of any ABR Revolving Borrowings then
outstanding, and at the end of the then current Interest Period with respect thereto, in the
case of any Eurodollar Revolving Borrowings then outstanding, the Borrower shall pay such
Borrowing in its entirety and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article IV, the Borrower shall reborrow Revolving Loans from the
Revolving Lenders in proportion to their respective Revolving Commitments after giving
effect to such increase, until such time as all outstanding Revolving Loans are held by the
Lenders in such proportion; and




     (y) each existing Lender whose Revolving Commitment has not increased pursuant to this
Section 2.20 (each, a “Non-increasing Revolving Lender”) shall be deemed, without
further action by any party hereto, to have sold to each Lender whose Revolving Commitment
has been assumed or increased under this Section 2.20 (each, an “Increased Revolving
Commitment Lender”), and each Increased Revolving Commitment Lender shall be deemed,
without further action by any party hereto, to have purchased from each Non-Increasing
Revolving Lender, a participation (on the terms specified in Section 2.04(d)) in each Letter
of Credit in which such Non-Increasing Revolving Lender has acquired a participation in an
amount equal to such Increased Revolving Commitment Lender’s Applicable Percentage thereof,
until such time as the LC Exposure is borne by the Revolving Lenders in proportion to their
respective Revolving Commitments after giving effect to such increase.



ARTICLE III




Representations and Warranties





     Each of Holdings and the Borrower represents and warrants to the Lenders that:



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          SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required.




          SECTION 3.02. Authorization; Enforceability. The Restatement Transactions and the
other Effective Date Transactions to be entered into by each Loan Party are within such Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each of Holdings and
the Borrower and constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Borrower or such Loan Party (as the case may be), enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Restatement Transactions and
the other Effective Date Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary to perfect Liens
created under the Loan Documents, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of Holdings, the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a
default under the Purchase Documents, the June 2004 Note Documents or any other indenture,
agreement or other instrument binding upon Holdings, the Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by Holdings, the
Borrower or any of its Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of Holdings, the Borrower or any of its Subsidiaries, except Liens created under
the Loan Documents.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended October 29, 2004,
reported on by Deloitte & Touche LLP, independent registered public accounting firm, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended July 29, 2005, certified by its
chief financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of the statements referred to
in clause (ii) above.




          (b) The Borrower shall furnish to the Lenders within five (5) Business Days after the date of
this Agreement its pro forma consolidated balance sheet as of the Fourth Restatement Effective
Date, prepared giving effect to the Effective date Transactions as if the Effective Date
Transactions had occurred on such date. Such pro forma consolidated balance sheet (i) has been

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prepared in good faith based on the same assumptions used to prepare the pro forma financial
statements included in the information package distributed to the Lenders in September 2005 (which
assumptions are believed by the Borrower to be reasonable), (ii) is based on the best information
available to the Borrower after due inquiry, (iii) accurately reflects all adjustments necessary to
give effect to the Effective Date Transactions and (iv) presents fairly, in all material respects,
the pro forma financial position of the Borrower and its consolidated Subsidiaries as of the date
of such proforma consolidated balance sheet as if the Effective Date Transactions had occurred on
such date.




          (c) Except as disclosed in the financial statements referred to above or the notes thereto
and except for the Disclosed Matters, after giving effect to the Restatement Transactions and the
other Effective Date Transactions, none of Holdings, the Borrower or its Subsidiaries has, as of
the Fourth Restatement Effective Date, any material contingent liabilities, other than material
contingent liabilities arising in the ordinary course of business, unusual long-term commitments or
unrealized losses that would be required by GAAP to be disclosed in such financial statements.




          (d) Since October 29, 2004, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of Holdings, the Borrower and
its Subsidiaries, taken as a whole.




          SECTION 3.05. Properties. (a) Each of Holdings, the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal property material to
its business, except for minor defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their intended purposes.




          (b) Each of Holdings, the Borrower and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by Holdings, the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          (c) Schedule 3.05 sets forth the address of each real property that is owned or leased by the
Borrower or any of its Subsidiaries as of the Fourth Restatement Effective Date after giving effect
to the Restatement Transactions. As of the Fourth Restatement Effective Date, after giving effect
to the Restatement Transactions, neither Holdings, the Borrower nor any of its Subsidiaries owns
any real property other than the real property set forth in Schedule 3.05.




          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings, the Borrower, any
of its Subsidiaries or the ESOP (i) as to which there is a reasonable possibility of an adverse
determination and that could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect or (ii) that involve any of the Loan Documents or the Effective Date
Transactions and that could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect.

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          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither Holdings, the Borrower nor any of its Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.




          (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.




          SECTION 3.07. Compliance with Laws and Agreements. Each of Holdings, the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.




          SECTION 3.08. Investment and Holding Company Status. Neither Holdings, the Borrower
nor any of its Subsidiaries is (a) an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.




          SECTION 3.09. Taxes. Each of Holdings, the Borrower and its Subsidiaries has timely
filed or caused to be filed all income, franchise and other material Tax returns and reports
required to have been filed and has paid or caused to be paid all material Taxes required to have
been paid by it, except Taxes that are being contested in good faith by appropriate proceedings and
for which Holdings, the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of all the assets of such Plan by an amount
that could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. Each Plan is in compliance in all material respects with the requirements under
ERISA and the Code.




          SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which Holdings, the Borrower or any of its
Subsidiaries is subject, and all other matters known to any of them, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the
reports, financial statements, certificates or other information furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender with respect to any Loan Party in

50









 








connection
with the negotiation of this Agreement or any other Loan Document or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading in any material
respect; provided that, with respect to projected financial information, and general market
data Holdings and the Borrower represent only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.




          SECTION 3.12. Subsidiaries. Holdings does not have any Subsidiaries other than the
Tracker Sub, the Borrower and the Borrower’s Subsidiaries, and such other Persons that become
Subsidiaries after the Fourth Restatement Effective Date in compliance with Section 6.04(l).
Schedule 3.12 sets forth the name and jurisdiction of organization of, and the ownership interest
of the Borrower in, each Subsidiary of the Borrower and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Fourth Restatement Effective Date.




          SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all insurance
maintained by or on behalf of the Borrower and its Subsidiaries as of the Fourth Restatement
Effective Date. As of the Fourth Restatement Effective Date, all premiums in respect of such
insurance have been paid.




          SECTION 3.14. Labor Matters. As of the Fourth Restatement Effective Date, except as
described on Schedule 3.14, there are no strikes, lockouts or slowdowns against Holdings, the
Borrower or any Subsidiary pending or, to the knowledge of Holdings or the Borrower, threatened.
The hours worked by and payments made to employees of Holdings, the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state,
local or foreign law dealing with such matters, except where such violations, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All
material payments due from Holdings, the Borrower or any Subsidiary, or for which any material
claim may be made against Holdings, the Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or accrued as a liability
on the books of Holdings, the Borrower or such Subsidiary. The consummation of the Effective Date
Transactions will not
give rise to any right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which Holdings, the Borrower or any Subsidiary is bound.




          SECTION 3.15. Solvency. Immediately after the consummation of the Restatement
Transactions to occur on the Fourth Restatement Effective Date and immediately following the making
of each Loan made on the Fourth Restatement Effective Date and after giving effect to the
application of the proceeds of such Loans (and taking into consideration the rights and obligations
of the Loan Parties under the Indemnity, Subrogation and Contribution Agreement), (a) the fair
value of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each
Loan Party will be greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured; and (d) each Loan Party will not have unreasonably small capital

51









 








with which to conduct
the business in which it is engaged as such business is now conducted and is proposed to be
conducted following the Fourth Restatement Effective Date.




     SECTION 3.16. Security Documents. (a) The Pledge Agreement is effective to create
in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Pledge Agreement) and, when
the Collateral is delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and interest of each
pledgor thereunder in such Collateral to the extent such Lien can be perfected by possession, in
each case prior and superior in right to any other Person.



     (b) The Security Agreement is effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) and, by virtue of the financing statements filed
with the Secretary of State of the jurisdiction of organization of each respective Loan Party
pursuant to the Existing Credit Agreement, the Security Agreement constitutes a fully perfected
Lien on, and security interest in, all right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property, as defined in the Security Agreement) to the
extent such Lien can be perfected by the filing of such financing statements, which Collateral is
subject to no other Lien, except, to the extent applicable, Liens permitted under Section 6.02.



     (c) By virtue of the filing of the Security Agreement in the United States Patent and
Trademark Office and the United States Copyright Office, the Security Agreement constitutes a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
the Intellectual Property (as defined in the Security Agreement) in which a security interest may
be perfected by filing, recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or the United States Copyright
Office, as applicable, in each case prior and superior in right to any other Person other than
Liens expressly permitted by Section 6.02 (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a Lien on registered trademarks, trademark applications and copyrights
acquired by the Loan Parties after the date hereof).



          SECTION 3.17. Federal Reserve Regulations. (a) Neither Holdings, the Borrower nor
any of its Subsidiaries is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock.




     (b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the Regulations of the
Board, including Regulation U or X.



          SECTION 3.18. TRW Agreement. The provisions of the TRW Agreement pursuant to which
TRW is obligated to perform any “Environmental Remediation” and/or indemnify, defend and hold
harmless the Borrower, with respect to “Excluded Environmental Obligations”, TRW’s share of “Shared
Environmental Obligations”, or otherwise with respect to “Environmental Activities”, are in full
force and effect in accordance with the terms of the TRW

52









 








Agreement and no party has waived any material rights thereunder. Terms contained in quotation marks in this Section 3.18 shall have the
respective meanings ascribed to such terms in the TRW Agreement.




          SECTION 3.19. Purchase Documents. The Borrower has delivered to the Agent and the
Lenders true and complete copies of each of the Purchase Documents, which constitute all of the
material agreements and understandings relating to the transactions contemplated thereby.




ARTICLE IV




Conditions




          SECTION 4.01. Opening Covenants. Prior to or concurrently with the execution and
delivery of this Agreement and its effectiveness, the Borrower and Holdings shall furnish to
Administrative Agent originals or copies for delivery to each Lender of the following:




          (a) Loan Party Certificates. A certificate executed by an authorized officer of each
Loan Party and a secretary or assistant secretary of such Loan Party certifying (i) the resolutions
of the Board of Directors of such Loan Party authorizing the execution, performance and delivery of
each Loan Document to which such Loan Party is a party, (ii) the names and signatures of the
officers of such Loan Party executing or attesting to such Loan Documents, and (iii) the absence of
any Default;




          (b) Good Standing Certificates. Certificates of good standing for each Loan Party,
certified by the office of the Secretary of State or other similar official of the state of
incorporation or formation of such Loan Party, and certificates of qualification to transact
business as a foreign corporation or other entity in every other State where such Loan Party’s
failure so to qualify could have a Material Adverse Effect; and




          (c) Formation Documents. (i) A copy of the certificate or articles of incorporation
of each Loan Party, including any amendments or restatements thereof, certified as of a recent date
by the Secretary of State or other governmental official of the jurisdiction of its formation, and
(ii) a copy of the by-laws or equivalent governing documents of such Loan Party, certified as true,
correct and in full force and effect by the Secretary or an Assistant Secretary of such Loan Party.




          SECTION 4.02 Prior to Initial Credit Event. Prior to or concurrently with the
effectiveness of this Agreement to amend and restate the Existing Credit Agreement in its entirety
and the occurrence of the initial Borrowing or Letter of Credit issuance hereunder (provided that
if such effectiveness fails to occur on or before December 15, 2005 this Agreement shall
terminate), the Borrower shall furnish to Administrative Agent originals or copies for delivery to
each Lender and the Letter of Credit Issuer of the following:




          (a) Notes. The Borrower shall have executed and delivered to the Administrative Agent
such promissory notes, if any, as may have been requested by any Lender pursuant to Section 2.08(e)
in the principal amount of, as applicable, such Lender’s Revolving Commitment and such Lender’s
Existing Term Loan and Fourth Restatement Term Loan.

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          (b) June 2004 Notes Consent. The Borrower shall have delivered to the Administrative
Agent evidence that the Borrower has sought to obtain consents from holders of the June 2004 Notes
regarding (i) the Change of Control (as defined in the June 2004 Notes Documents) effected by the
Purchase Documents, and (ii) distributions by the Borrower or Holdings or both in an amount
reasonably necessary to consummate the Effective Date Transactions and no other amendment thereto
(other than amendments that are approved in writing by the Administrative Agent in its reasonable
discretion), and that holders of June 2004 Notes having an aggregate principal balance of at least
$230,000,000 have consented to such Change of Control (or, if evidence of such consents of holders
of June 2004 Notes having an aggregate principal balance of less than $230,000,000 is so delivered,
at the Borrower’s option, the Borrower shall have delivered to the Administrative Agent a written
commitment for Put Refinancing Indebtedness or additional equity in an amount at least equal to the
difference between $230,000,000 and aggregate principal balance of June 2004 Notes as to which the
Borrower has obtained such consents, and such commitment shall be in full force and effect and
subject only to conditions precedent deemed by the Administrative Agent to be attainable by the
Borrower).




          (c) Purchase Documents Closing. Holdings shall have delivered to the Administrative
Agent evidence reasonably satisfactory to the Administrative Agent that the transactions
contemplated by the Purchase Documents have been consummated in all material respects in accordance
with the respective terms and conditions thereof.




          (d) Subordinated Indebtedness. The Borrower and the manager or managers under the
Permitted Management Agreement shall have delivered to the Administrative Agent a subordination
agreement with respect to Permitted Management Fees in the form of Exhibit C hereto.




          (e) Disbursement Instructions. The Borrower shall have delivered to the
Administrative Agent a Borrowing Request and instructions from the Borrower directing the
Administrative Agent to disburse the proceeds of the Effective Date Term Advance.




          (f) Guarantees. Holdings shall have executed and delivered to the Administrative
Agent a confirmation of the Parent Guarantee Agreement, and each of the Subsidiary Loan Parties
shall have executed and delivered to the Administrative Agent a confirmation of its Subsidiary
Guarantee Agreement, all in form and substance satisfactory to the Administrative Agent.




          (g) Security Agreements. Each of the Subsidiary Loan Parties shall have executed and
delivered to the Administrative Agent a confirmation of the Security Agreement, in form and
substance satisfactory to the Administrative Agent.




          (h) Pledge Agreement. Holdings shall have executed and delivered to the
Administrative Agent a confirmation of the Pledge Agreement, in form and substance satisfactory to
the Administrative Agent.




          (i) Indemnity, Subrogation and Contribution Agreement. The Loan Parties shall have
executed and delivered to the Administrative Agent a confirmation of the Indemnity,

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Subrogation and
Contribution Agreement, in form and substance satisfactory to the Administrative Agent




          (j) Closing Fees. The Borrower shall have paid or caused to be paid all fees required
to be paid by it on or prior to such date pursuant to 2.11 hereof, the structuring and arrangement
fee to each of the Joint Lead Arrangers as heretofore agreed to in letters between them and the
Borrower, and all reasonable fees and expenses of the Administrative Agents and of special counsel
to the Administrative Agents in connection with the preparation, execution and delivery of this
Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby
and thereby.




          (k) Mortgages. The appropriate Loan Parties shall have executed and delivered to the
Collateral Agent amendments to Mortgages encumbering the California Property and the Ohio Property;
at the expense of the Borrower, such Mortgage amendments shall have been filed for record in the
appropriate public records; and, at the expense of the Borrower, there shall have been issued to
the Collateral Agent endorsements to the loan policies of title insurance in respect of the
Mortgages in form and substance satisfactory to the Collateral Agent.




          (l) Legal Opinion. The Borrower shall have caused the delivery to the Administrative
Agent a favorable opinion of Jones Day, counsel for the Loan Parties, all in form and substance
reasonably acceptable to the Administrative Agent.




          (m) Lien Searches; Filings. The Borrower shall have delivered, or cause to be
delivered, to the Administrative Agent results of searches, in form and scope and as of such dates,
as are satisfactory to the Administrative Agent, of Uniform Commercial Code and all other liens
which may have been filed against each Loan Party and its property; and such additional filings to
perfect the Liens of the Security Documents, if any, shall have been made at the expense of the
Borrower as the Collateral Agent may request.




          (n) Evidence of Insurance. The Administrative Agent shall have received certificates
of insurance and other evidence, satisfactory to it, of compliance with the insurance requirements
of this Agreement and the Security Documents.




          (o) Absence of Litigation. The Administrative Agent shall have received evidence
satisfactory to it that there shall is not any action, suits or proceedings pending or threatened
with respect to any Loan Party (i) that have, or could reasonably be expected to have, a Material
Adverse Effect, or (ii) that question the validity or enforceability of any of the Loan Documents,
or of any action to be taken by the Borrower or any of the other Loan Parties pursuant to any of
the Loan Documents.




          (p) Bringdown Certificate. On the Fourth Restatement Effective Date, and after giving
effect to the Effective Date Transactions, (i) all of the representations and warranties of the
Borrower and Holdings set forth in Article III of this Agreement shall be true and correct in all
material respects, (ii) no Default shall have occurred and be continuing, and (iii) the Chief
Financial Officers (or other executive officers) of the Borrower and Holdings shall have executed
and delivered a certificate on such date to that effect.




55









 








          (q) Other Matters. The Borrower shall have executed and delivered to the
Administrative Agent such other documents, certificates and other matters, and shall have taken
such other actions, as the Administrative Agent may reasonably request of the Borrower and any of
the Subsidiary Guarantors.




          SECTION 4.03. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:





     (a) The representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.




     (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by Holdings and the Borrower on the date thereof
as to the matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants




          Until the Revolving Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters
of Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed and each other Obligation shall have been performed and satisfied in full,
each of Holdings and the Borrower covenants and agrees with the Lenders that:




          SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender:





     (a) within 120 days after the end of each fiscal year of the Borrower, at the option of
the Borrower, the audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows of either the Borrower or of Holdings as of the end of
and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of, as the case may be, the
Borrower or Holdings, and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently (except as noted therein) applied, provided that, if the
Borrower chooses to furnish such financial information with



56









 







respect to Holdings, such
financial information shall include the consolidating financial information with respect to
the Borrower;




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, at the option of the Borrower, the consolidated balance sheet
and related statements of operations, stockholders’ equity and cash flows of either the
Borrower or of Holdings as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as
presenting fairly in all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently (except as noted therein) applied, subject to normal year-end audit
adjustments and the absence of footnotes, provided that, if the Borrower chooses to furnish
such financial information with respect to Holdings, such financial information shall
include the consolidating financial information with respect to the Borrower;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12 and 6.13 and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the date of the
Borrower’s audited financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying
such certificate;




     (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);




     (e) within 60 days after the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related statements of projected operations and cash flow as of the end of
and for such fiscal year) and, promptly when available, any significant revisions of such
budget;




     (f) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by Holdings to its shareholders generally, as the case
may be; and



57









 






     (g) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent
or any Lender may reasonably request.



          Delivery to the Administrative Agent and each Lender (directly or through the Administrative
Agent) of a copy of the Borrower’s Form 10-K or 10-Q, as the case may be, filed with the Securities
and Exchange Commission will satisfy the requirements set forth in clause (a) and (b) above, as the
case may be, provided that the contents thereof satisfy such requirements.




          SECTION 5.02. Notices of Material Events. Holdings and the Borrower will furnish to
the Administrative Agent and each Lender (directly or through the Administrative Agent) prompt
written notice of the following:





     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Holdings, the Borrower or any
Affiliate thereof that could reasonably be expected to result in either (i) liability in
excess of $3,000,000 or (ii) a Material Adverse Effect;




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of Holdings,
the Borrower and its Subsidiaries in an aggregate amount exceeding $2,000,000; and




     (d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          SECTION 5.03. Information Regarding Collateral. (a) The Borrower will furnish to
the Administrative Agent prompt written notice of any change (i) in any Loan Party’s name, (ii) in
the jurisdiction of incorporation or organization of any Loan Party, (iii) in the location of the
chief executive office of any Loan Party, (iii) in any Loan Party’s identity or type of
organization or corporate structure or (iv) in any Loan Party’s Organizational Identification
Number. Each Loan Party agrees to promptly provide the Administrative Agent with certified
organizational documents reflecting any of the changes described in the first sentence of this
paragraph. The Borrower agrees not to effect or permit any change referred to in the first
sentence of this paragraph unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in all the Collateral.
The Borrower also agrees promptly to notify the Administrative Agent if any material portion of
the Collateral is damaged or destroyed.

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          (b) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to clause (a) of Section 5.01, the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Borrower and the chief legal
officer of the Borrower setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such information since the
date of the Perfection Certificate delivered on the Fourth Restatement Effective Date or the date
of the most recent certificate delivered pursuant to this Section. Each certificate delivered
pursuant to this Section 5.03(b) shall identify in the format of Schedule II, III, IV or V, as
applicable, of the Security Agreement all Intellectual Property (as defined in the Security
Agreement) of any Loan Party in existence on the date thereof and not then listed on such Schedules
as previously so identified to the Collateral Agent.




          SECTION 5.04. Existence; Conduct of Business. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and tradenames material to the
conduct of its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.




          SECTION 5.05. Payment of Obligations. Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, pay its obligations (other than Indebtedness, the failure
in payment of which is governed by Article VII), including material Tax liabilities, before the
same shall become delinquent or in default, except where (i) (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) Holdings, the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested obligation and the
enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect or (ii) as to obligations other than
material Tax liabilities, the failure of payment of which cannot reasonably expected to result in a
Material Adverse Effect.




          SECTION 5.06. Maintenance of Properties. Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted.




          SECTION 5.07. Insurance. (a) Each of Holdings and the Borrower will, and will cause
each of its Subsidiaries to, maintain, with financially sound and reputable insurance companies:





     (i) fire and extended coverage insurance, on a replacement cost basis, with respect to
all personal property and improvements to real property, in such amounts as are customarily
maintained by companies in the same or similar business operating in the same or similar
locations;




     (ii) commercial general liability insurance against claims for bodily injury, death or
property damage occurring upon, about or in connection with the use of any properties owned,
occupied or controlled by it, providing coverage on an occurrence basis with a



59









 







combined
single limit of not less than $1,000,000 (plus $35,000,000 of additional coverage under
umbrella and similar policies) and including the broad form CGL endorsement;




     (iii) business interruption insurance, insuring against loss of gross earnings for a
period of not less than 12 months arising from any risks or occurrences required to be
covered by insurance pursuant to clause (i) above; and




     (iv) such other insurance of the type and in the amount described in Schedule 3.13 or
as may be required by law.


Deductibles or self-insured retention shall not exceed $500,000 for fire and extended coverage
policies, $0 for commercial general liability policies or $500,000 for business interruption
policies.




          (b) Fire and extended coverage policies (and any policies required to be maintained pursuant
to paragraph (c) below) maintained with respect to any Collateral shall be endorsed or otherwise
amended to include (i) a non-contributing mortgage clause (regarding improvements to real property)
and lenders’ loss payable clause (regarding personal property), in each case in favor of the
Administrative Agent and providing for losses thereunder to be payable to the Administrative Agent
or its designee, (ii) a provision to the effect that neither the Borrower, the Administrative Agent
nor any other party shall be a coinsurer and (iii) such other provisions as the Administrative
Agent may reasonably require from time to time to protect the interests of the Lenders. Commercial
general liability policies shall be endorsed to name the Administrative Agent as an additional
insured. Business interruption policies shall name the Administrative Agent as loss payee. Each
such policy referred to in this paragraph also shall
provide that it shall not be canceled, modified or not renewed (i) by reason of nonpayment of
premium except upon not less than 10 days’ prior written notice thereof by the insurer to the
Administrative Agent (giving the Administrative Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason except upon not less than 30 days’ prior written notice
thereof by the insurer to the Administrative Agent. The Borrower shall deliver to the
Administrative Agent, prior to the cancellation, modification or nonrenewal of any such policy of
insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent) together with evidence satisfactory to the
Administrative Agent of payment of the premium therefor.




          (c) If at any time the area in which any Mortgaged Property is located is designated (i) a
“flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), the Borrower shall obtain flood insurance in such total amount as
the Administrative Agent or the Required Lenders may from time to time require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act
of 1973, as amended from time to time, or (ii) a “Zone 1” area, the Borrower shall obtain
earthquake insurance in such total amount as the Administrative Agent or the Required Lenders may
from time to time require.




          SECTION 5.08. Casualty and Condemnation. (a) The Borrower will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or other insured

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damage
to any portion of any material Collateral or the commencement of any action or proceeding for the
taking of any material Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding.




          (b) If any event described in paragraph (a) of this Section results in Net Proceeds (whether
in the form of insurance proceeds, condemnation award or otherwise), the Administrative Agent is
authorized to collect such Net Proceeds and, if received by Holdings, the Borrower or any
Subsidiary, such Net Proceeds shall be paid over to the Administrative Agent; provided that
(i) if the aggregate Net Proceeds in respect of such event (other than proceeds of business income
insurance) are less than $3,000,000, such Net Proceeds shall be paid over to the Borrower unless a
Default has occurred and is continuing, and (ii) all proceeds of business income insurance shall be
paid over to the Borrower unless a Default has occurred and is continuing. All such Net Proceeds
retained by or paid over to the Administrative Agent shall be held by the Administrative Agent and
released from time to time to pay the costs of repairing, restoring or replacing the affected
property in accordance with the terms of the applicable Security Document, subject to the
provisions of the applicable Security Document regarding application of such Net Proceeds during a
Default.




          (c) If any Net Proceeds retained by or paid over to the Administrative Agent as provided
above continue to be held by the Administrative Agent on the date that is two years after the
occurrence of the event resulting in such Net Proceeds, then such Net Proceeds shall be applied to
prepay Consolidated Term Borrowings as provided in Section 2.10(c).




          SECTION 5.09. Books and Records; Inspection and Audit Rights. Each of Holdings and
the Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and transactions in
relation to its business and activities. Each of Holdings and the Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or
any Lender, upon reasonable prior notice, to visit and inspect its Collateral and properties, to
examine and make extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable times and as often
as reasonably requested.




          SECTION 5.10. Compliance with Laws and Agreements. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect and with all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.




          SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of the Revolving
Loans have been and will be used, and the proceeds of the Effective Date Term Advance will be used,
solely (a) for working capital purposes and (b) for other general corporate purposes permitted by
this Agreement, including, without limitation, Permitted Acquisitions. No part of the proceeds of
any Loan has been or will be used, whether directly or indirectly, for any

61









 








purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X. Letters of Credit
will be issued only for general corporate purposes.




          SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Fourth Restatement Effective Date, the Borrower will notify the Administrative
Agent and the Lenders thereof and (a) if such Subsidiary is a Subsidiary Loan Party, the Borrower
will cause such Subsidiary to become a party to the Subsidiary Guarantee Agreement, the Indemnity,
Subrogation and Contribution Agreement and each applicable Security Document in the manner provided
therein within three Business Days after such Subsidiary is formed or acquired and promptly take
such actions to create and perfect Liens on such Subsidiary’s assets to secure the Obligations as
the Administrative Agent or the Required Lenders shall reasonably request and (b) if any shares of
capital stock or Indebtedness of such Subsidiary are owned by or on behalf of any Loan Party, the
Borrower will cause such shares and promissory notes evidencing such Indebtedness to be pledged
pursuant to the Pledge Agreement within three Business Days after such Subsidiary is formed or
acquired (except that, if such Subsidiary is a Foreign Subsidiary, shares of common stock of such
Subsidiary to be pledged pursuant to the Pledge Agreement may be limited to 65% of the outstanding
shares of common stock of such Subsidiary).




          SECTION 5.13. Further Assurances. (a) Each of Holdings and the Borrower will, and
will cause each Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions (including the filing and
recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents), which may be
required under any applicable law, or that the Administrative Agent or the Required Lenders may
reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created or intended to be created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the Loan Parties. Holdings and
the Borrower also agree to provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.




          The Collateral Agent shall release such lien as it may hold in the stock or assets of the
Tracker Sub upon request of the Borrower or Holdings.




          (b) If any material assets (including any real property or improvements thereto or any
interest therein) are acquired by the Borrower or any Subsidiary Loan Party after the Fourth
Restatement Effective Date (other than assets constituting Collateral under the Security Agreement
that become subject to the Lien of the Security Agreement upon acquisition thereof), the Borrower
will notify the Administrative Agent and the Lenders thereof, and, if requested by the
Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected
to a Lien securing the Obligations and will take, and cause the Subsidiary Loan Parties to take,
such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties.

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ARTICLE VI




Negative Covenants




          Until the Revolving Commitments have expired or terminated and the principal of and interest
on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed and each other Obligation
shall have been performed and satisfied in full, each of Holdings and the Borrower covenants and
agrees with the Lenders that:




          SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The Borrower will not,
and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:





     (i) Indebtedness created under the Loan Documents;




     (ii) in the case of the Borrower, Indebtedness under the June 2004 Notes;




     (iii) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that
is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section
6.04;




     (iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary; provided that (A) the
Indebtedness so guaranteed is permitted by this Section, (B) Guarantees by the Borrower or
any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall
be subject to Section 6.04 and (C) the June 2004 Notes shall not be Guaranteed by any
Subsidiary that is not a guarantor under the Subsidiary Guarantee Agreement;




     (v) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such construction or
improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause
(v) shall not exceed $3,000,000 at any time outstanding;




     (vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that (A) such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming
a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause
(vi) shall not exceed an amount equal to 10% of Adjusted EBITDA for the



63









 







preceding four
consecutive quarterly periods most recently ended, measured at the time such Person becomes
a Subsidiary;




     (vii) Indebtedness of a Foreign Subsidiary, so long as the aggregate unpaid principal
balance of all Indebtedness of all of the Foreign Subsidiaries does not at any time exceed
$10,000,000; and




     (viii) Subordinated Indebtedness of the Borrower and the Subsidiary Loan Parties;




     (ix) Indebtedness secured by Liens that are permitted under Section 6.02;




     (x) Indebtedness in respect of overdraft services in the ordinary course of business
that is not more than ten (10) days past due;




     (xi) Indebtedness in respect of earn-out agreements, non-compete agreements, deferred
compensation agreements and similar agreements, so long as the aggregate unpaid balance of
all such Indebtedness does not at any time exceed an amount equal to 5% of Adjusted EBITDA
for the preceding four consecutive quarterly periods most recently ended, measured at the
time any such agreement is entered into;




     (xii) Indebtedness in respect of reasonable and customary purchase price adjustment
provisions in connection with Permitted Acquisitions and dispositions permitted under this
Agreement




     (xiii) Indebtedness incurred to finance some or all of the premiums of insurance
obtained by the Loan Parties in the ordinary course of business; and




     (xiv) other unsecured Indebtedness in an aggregate principal amount at any time
outstanding not exceeding an amount equal to (A) $10,000,000, minus (B) the
aggregate principal amount of Indebtedness and other obligations outstanding at such time
pursuant to clause (q) of the definition of Permitted Encumbrances.



          (b) Holdings will not create, incur, assume or permit to exist any Indebtedness that is
secured by a Lien except Indebtedness created under the Loan Documents.




          (c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue any
Current Redeemable Equity.




          SECTION 6.02. Liens. (a) The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable,
other than sales of delinquent accounts receivable for collection purposes in the ordinary course
of business) or rights in respect of any thereof, except:





     (i) Liens created under the Loan Documents;




     (ii) Permitted Encumbrances;



64









 






     (iii) any Lien existing on any property or asset prior to the acquisition thereof by
the Borrower or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary and (C) such Lien shall secure only those obligations that it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;




     (iv) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (A) such security interests secure Indebtedness
permitted by clause (v) of Section 6.01(a), (B) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital
assets and (D) such security interests shall not apply to any other property or assets of
the Borrower or any Subsidiary; and




     (v) Liens in the form of options on the Common Stock held by the Borrower and Holdings
issued to directors and employees of Holdings, the Borrower and the Subsidiaries.



          (b) Holdings will not create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, except Liens created under the Loan Documents
and Permitted Encumbrances.




          SECTION 6.03. Fundamental Changes. (a) Except for the Effective Date Transactions
and the effects of Permitted Acquisitions, neither Holdings nor the Borrower will, nor will they
permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary Loan Party in a
transaction in which the surviving entity is a Subsidiary Loan Party, (iii) any Subsidiary that is
not a Loan Party may merge into any Subsidiary that is not a Loan Party and (iv) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the





65










 





Borrower and its Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.




               SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. Neither
Holdings nor the Borrower will, nor will they permit any of the Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) or make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any equity
investment or any other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person constituting a business
unit, except:




     (a) the Borrower (and, in the case of clause (i) below, Holdings) will be permitted to
(i) repurchase stock (and options to acquire stock) from current or former directors and
employees of Holdings, the Borrower and the Subsidiaries (and their respective estates,
descendants, legatees, spouses, former spouses and trusts for the benefit of any of such
Persons) in an aggregate amount not to exceed (x) $4,000,000 in the fiscal year ending
October 27, 2006 and (y) $2,000,000 in any fiscal year thereafter (but net of cancelled
Indebtedness of the Borrower or Holdings, the proceeds of life insurance received by the
Borrower or Holdings, the proceeds of contributions to the capital of the Borrower or
Holdings made not more than five (5) Business Days prior to such repurchase, and amounts in
respect of rolled-over purchases in respect of such director or employee); provided,
however, that any amount that is permitted and not used in any particular fiscal
year to repurchase stock shall be carried over to the subsequent fiscal year and shall be
available to be used to repurchase stock in such fiscal year; and provided
further, however, that the aggregate amount used to repurchase stock
pursuant to this clause (a)(i) shall not exceed $5,000,000 in any consecutive 365 day
period, and (ii) make Permitted Acquisitions; provided that both of the Restricted
Transaction Conditions shall have been satisfied immediately prior and after giving effect
thereto;




     (b) Permitted Investments;




     (c) credit arrangements in favor of Account Debtors in the ordinary course of business
and consistent with practice prior to the Fourth Restatement Effective Date;




     (d) investments by the Borrower in the capital stock of the Subsidiaries;
provided that (i) any such shares of capital stock shall be pledged pursuant to the
Pledge Agreement (subject to the limitations applicable to common stock of a Foreign
Subsidiary referred to in Section 5.12) and (ii) the aggregate amount of investments in, and
loans and advances to, and Guarantees of Indebtedness of, Subsidiaries that are not Loan
Parties shall not exceed $5,000,000 in the aggregate at any time outstanding;




     (e) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary
to the Borrower or any other Subsidiary; provided that (i) any such loans and
advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of all such loans and advances by



66









 






Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation
set forth in clause (d)(ii) above;




     (f) Guarantees constituting Indebtedness permitted by Section 6.01; provided
that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan
Parties Guaranteed by any Loan Party shall be subject to the limitation set forth in clause
(d)(ii) above;




     (g) investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (h) Indebtedness of current or former employees and directors in respect of equity
interests in Loan Parties purchased by such Persons and other loans to directors and
employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate
principal amount not to exceed $3,500,000 at any time outstanding;




     (i) Hedging Agreements permitted under Section 6.07;




     (j) loans by the Borrower to Holdings to the extent Holdings is permitted to incur such
Indebtedness pursuant to Section 6.01(b);




     (k) guarantees by Holdings of Indebtedness incurred by another Person with respect to
the development of certain tracking technology transferred to Holdings by the Borrower on or
before the Fourth Restatement Effective Date, so long as the aggregate principal amount of
all such Indebtedness does not at any time exceed an amount equal to $4,000,000,
minus the amount of all expenditures made by Holdings permitted by Section
6.08(a)(iv)(D), below;




     (l) investment by Holdings in the capital stock of its Subsidiaries, and the purchase
of operating assets by such Subsidiaries that are not Loan Parties, so long as all such
stock (other than stock of the Tracker Sub) is subject to the Lien of the Pledge Agreement;




     (m) subject to the requirements of Section 6.05, investments received from asset sales;
and




     (n) other investments, so long as the aggregate acquisition cost of all such
investments of all Loan Parties does not exceed $10,000,000 at any time.



               SECTION 6.05. Asset Sales. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease (as lessor) or otherwise dispose of any asset, including any
capital stock, nor will the Borrower permit any of its Subsidiaries to issue any additional shares
of its capital stock or other ownership interest in such Subsidiary, except:




     (a) sales of inventory, used or surplus equipment and Permitted Investments in the
ordinary course of business;



67









 






     (b) sales, transfers, and dispositions to the Borrower or a Subsidiary;
provided that any such sales, transfers or dispositions involving a Subsidiary that
is not a Loan Party shall be made in compliance with Section 6.09;




     (c) sales, transfers and dispositions of assets that are not permitted by any other
clause of this Section; provided that the aggregate fair market value of all assets
sold, transferred or otherwise disposed of in reliance upon this clause (c) shall not exceed
$10,000,000 in the aggregate during the term of this Agreement;




     (d) sales of the Ohio Property and leases of portions of the Ohio Property consistent
with practice prior to the Fourth Restatement Effective Date;




     (e) pursuant to stock options issued to directors and employees of Holdings, the
Borrower and the Subsidiaries, sales of Common Stock purchased and held by the Borrower;




     (f) the transfer of the capital stock of the Tracker Sub at any time following the
Fourth Restatement Effective Date; and




     (g) sales, transfers and dispositions of assets related to the cryogenics business; and




     (h) sales, transfers and dispositions of non-core assets acquired in connection with a
Permitted Acquisitions;


provided that all sales, transfers and other dispositions permitted by clauses (c) and (d)
above (but not including leases of portions of the Ohio property), shall be made for fair value and
for cash consideration comprising at least 75% of the full consideration received therefrom.




               SECTION 6.06. Sale and Lease-Back Transactions. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except for the Ohio Property.



               SECTION 6.07. Hedging Agreements. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any Hedging Agreement, other than (i) Hedging Agreements (a) that
are entered into in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the management of its
liabilities, and (b) if the Hedging Agreements described in clause (a) hereof are interest rate
protection agreements or other interest hedging arrangements, that hedge a floating interest rate
to a stipulated fixed interest rate and (ii) other Hedging Agreements that are interest rate
protection agreements or other interest hedging arrangements, so long as the aggregate notional amount of all such other interest rate Hedging
Agreements to which the Borrower or any Subsidiary is a party that do not comply with the
requirements of clause (i) hereof do not at any time exceed $100,000,000.



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               SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a) Neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to, declare or make, or agree
to pay or make, directly or indirectly, any Restricted Payment, except:




     (i) Holdings may declare and pay dividends with respect to its capital stock payable
solely in additional shares of its common stock or Current Redeemable Equity;




     (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to
their capital stock;




     (iii) Holdings and the Borrower may make the Restricted Payments (A) contemplated by
and permitted under Section 6.04(a)(i), so long as, in each instance, immediately prior to,
and after giving effect to, such Restricted Payment, no Default shall exist, and (B)
Holdings may make Restricted Payments consisting of Company Notes pursuant to the
Stockholders’ Agreement;




     (iv) the Borrower may pay to Holdings, at such times and in such amounts as shall be
necessary, after giving effect to the application by Holdings of any other cash resources
available to it (including Permitted Investments), to permit Holdings to




(A) pay taxes imposed upon it and liabilities incidental to its existence
(including, without limitation, the premiums of directors’ and officers’ errors and
omissions insurance and indemnities owing to officers and directors and expenses in
connection with public filings) when due,




(B) pay directors’ fees to its directors and actual operating expenses when due,
provided that dividends paid to Holdings for the purpose of paying directors’ fees
and actual operating expenses shall not exceed $1,000,000 in any fiscal year,




(C) pay Permitted Management Fees that do not exceed in any fiscal year $1,000,000,
plus indemnities and usual and customary out-of-pocket expenses provided for under
the Permitted Management Agreement,




(D) pay customary and reasonable fees and expenses in connection with the Effective
Date Transactions and other issuances of equity or Indebtedness in each case
permitted by this Agreement and with Permitted Acquisitions,




(E) make Restricted Payments to be made by Holdings that are permitted by clause
(iii) above,




(F) make investments in the Tracker Sub described in clause (k) of the definition of
Permitted Investments, and




(G) if at the time thereof and after giving effect thereto no Default has occurred
and is continuing, make payments on Holdings Included Indebtedness,



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provided that any dividends permitted to be paid to Holdings shall not be paid more
than five (5) Business Days prior to the date that Holdings will apply the proceeds of such
dividends to the purposes for which such dividends are permitted,




(v) the transfer of the stock of the Tracker Sub described in Section 6.05(f);




(vi) Restricted Payments that are part of the Effective Date Transactions;




(vii) Restricted Payments made with the proceeds of contributions to the capital of
the applicable Loan Party not more than five (5) Business Days prior to such
Restricted Payments, so long as no Default then exists or would exist after giving
effect thereto; and



               (b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or
agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest on any Indebtedness, or
any payment or other distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:




     (i) payment of Indebtedness created under the Loan Documents;




     (ii) payment of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness;




     (iii) refinancings of Indebtedness to the extent permitted by Section 6.01; and




     (iv) prepayment or any other repurchase, redemption or repayment of the June 2004 Notes
to the extent permitted by Section 6.14, below; and




     (v) purchase (prior to maturity) or prepayment of Indebtedness (other than Subordinated
Indebtedness and Indebtedness under the June 2004 Notes) so long as immediately prior
thereto, and after giving effect thereto, no Default exists or would exist, unless such
purchase or prepayment is made with the proceeds of contribution to the capital of, as the
case may be, Holdings or the Borrower not more than five (5) Business Days prior to such
purchase or prepayment, in which case such purchase or prepayment can be so made.



               SECTION 6.09. Transactions with Affiliates. Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) transactions in the ordinary course of
business that do not involve Holdings (except as expressly permitted pursuant to Section 6.08) and
are at prices and on terms and conditions not, in any material respect, less favorable to the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b)
transactions between or among Holdings, the Borrower and the Subsidiary Loan Parties not involving
any other Affiliate, (c) any Restricted Payment permitted by Section 6.08, (d) director and
employee loans permitted by Section 6.04, (e) transactions



70









 




between the Borrower, Holdings or a Subsidiary and an Affiliate that is an employee of the Borrower or such Subsidiary that (i) are in
the nature of employment agreements or otherwise related to such employee’s employment or
compensation and (ii) are at prices and on terms and conditions not materially less favorable to
the Borrower, Holdings or such Subsidiary than are customarily obtained by other similarly situated
employees from their employers, (f) transactions under the Stockholders’ Agreement permitted by
this Agreement, (g) performance of the Permitted Management Agreement, and (h) transactions
relating to the Tracker Sub permitted by this Agreement.




               SECTION 6.10. Restrictive Agreements. Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of Holdings, the Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the Fourth Restatement Effective Date identified on Schedule 6.10 (but shall
apply to any extension or renewal of, or any amendment or modification expanding the scope of, any
such restriction or condition), (iii) the foregoing shall not apply to restrictions and conditions
imposed by the Holdco 2005 Notes, (iv) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (v) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such Indebtedness, (vi)
clause (a) of the foregoing shall not apply to customary provisions in leases and other agreements
restricting the assignment thereof.



               SECTION 6.11. Amendment of Material Documents. Except pursuant to the Effective Date
Transactions, neither Holdings nor the Borrower will, nor will they permit any Subsidiary to (a)
amend, modify or waive any of its rights under its certificate of incorporation, by-laws or other
organizational documents; provided that the organizational documents of the Loan Parties
may be amended so long as such amendment could not reasonably be expected to have a Material
Adverse Effect, (b) amend, supplement or modify any of the terms or provisions contained in the TRW
Agreement, the Permitted Management Agreement or the Holdco 2005 Notes (or any other document
governing or providing for the terms and conditions of the Indebtedness evidenced thereby) unless
such amendment, supplementation or modification could not reasonably be expected to have a Material
Adverse Effect, or (c) amend, modify or supplement any terms or provisions contained in the June
2004 Note Documents, other than (i) such amendments and consents as shall be contained in the documents delivered by the Borrower pursuant to Section 4.02(b), (ii) a supplement to add a guarantor thereunder, so long as such Person is a
guarantor under the Subsidiary Guarantee Agreement, (iii) in connection with additional issuances
of Notes pursuant to the June 2004 Notes Documents in all material respects on the same terms as
the June 2004 Notes and the June 2004 Notes Documents provide on the Fourth Restatement Effective
Date, after giving effect to the amendments and consents as shall



71









 




be contained in the documents delivered by the Borrower pursuant to Section 4.02(b), as from time to time modified pursuant to this Section 6.11, (iv) in connection with permitted repayments or repurchases of the June 2004
Notes, and (v) any amendment or consent the effect of which does not impose any new material
obligation on, and is not in any material respect more restrictive on, any Loan Party than the
terms of the June 2004 Notes and the June 2004 Notes Documents on the Fourth Restatement Effective
Date, after giving effect to the amendments and consents as shall be contained in the documents
delivered by the Borrower pursuant to Section 4.02(b). With respect to any amendment,
supplementation or modification pursuant to clauses (a), (b) or (c), above, the Borrower shall have
delivered to the Administrative Agent and its counsel a copy of such proposed amendment,
supplementation or modification at least five (5) Business Days prior to the proposed effective
date thereof.




               SECTION 6.12. Leverage Ratios. (a) The Borrower will not permit the Leverage Ratio
as of the last day of any fiscal quarter ending during any of the periods (or, as applicable,
ending on the date) set forth below to be in excess of the ratio set forth opposite such period:



	 	 	 	 	 
	Fiscal Quarter Ending	 	Maximum Ratio
	October 28, 2005
	 	 	7.50 to 1	 
	 
	All of fiscal year 2006
	 	 	6.75 to 1	 
	 
	All of fiscal year 2007
	 	 	6.25 to 1	 
	 
	All of fiscal year 2008
and thereafter
	 	 	5.50 to 1.	 






               (b) The Borrower will not permit the Secured Leverage Ratio as of the last day of any fiscal
quarter ending on or after October 28, 2005 to be in excess of 2.50 to 1.



               SECTION 6.13 Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed
Charge Coverage Ratio for any period of four (4) consecutive fiscal quarters of the Borrower ending
on or after October 28, 2005 to be less than 1.10 to 1.



               SECTION 6.14. Certain Actions under June 2004 Note Documents. The Borrower will not
(i) make any voluntary prepayment or optional prepayment of any of the June 2004 Notes or make any
other repurchase, redemption or repayment of the June 2004 Notes prior to the stated maturity date
thereof, as they provide on the Fourth Restatement Effective Date, or (ii) purchase or otherwise
acquire any June 2004 Note, unless (x) in either case of clause (i) or clause (ii) both of the
Restricted Transaction Conditions shall have been satisfied immediately prior and after giving effect thereto, or (y) made with contributions to the capital of the Borrower not more
than five (5) Business Days prior thereto.



ARTICLE VII



Events of Default




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     If any of the following events (“Events of Default”) shall occur:



     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;



     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three Business Days;



     (c) any representation or warranty made or deemed made by or on behalf of Holdings, the
Borrower or any Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;



     (d) Holdings or the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.02, 5.04 (with respect to the existence of Holdings or
the Borrower) or 5.11 or in Article VI;



     (e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);



     (f) Holdings, the Borrower or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (after giving effect to any notice,
passage of time or both required or permitted by any note or other agreement evidencing or
governing such Material Indebtedness);



     (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (after giving effect to such
giving of notice, passage of time or both as may be required under the agreements evidencing
or governing such Material Indebtedness) the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that
this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness;



     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of Holdings, the



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Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;




     (i) Holdings, the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any Subsidiary
or for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;




     (j) Holdings or the Borrower shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;




     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 shall be rendered against Holdings, the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any material assets of Holdings, the
Borrower or any Subsidiary to enforce any such judgment;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000 for all periods;




     (m) any Lien purported to be created under any Security Document shall cease to be, or
shall be asserted by any Loan Party not to be, a valid and perfected Lien on any Collateral,
with the priority required by the applicable Security Document, except (i) as a result of
the sale or other disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Administrative Agent’s failure to maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement; or




     (n) a Change in Control shall occur;


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event,




74









 







the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Revolving Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to
the Borrower described in clause (h) or (i) of this Article, the Revolving Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.




ARTICLE VIII



The Administrative Agent




               Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
(which term for purposes of this Article shall be deemed to refer to the Administrative Agent and
the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of
the Loan Documents, together with such actions and powers as are reasonably incidental thereto.



               The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.



               The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), (c) except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Holdings, the Borrower or any of its Subsidiaries that is communicated to
or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity,
and (d) the Administrative Agent shall have no liability for its failure to deliver to a Lender any



75









 




report, information or other writing that a Loan Party is obligated to deliver to such Lender. The
Administrative Agent shall not be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default unless and until written notice thereof is given to the Administrative
Agent by Holdings, the Subsidiaries, the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.




               The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



               The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.



               Subject to the appointment and acceptance of a successor the Administrative Agent as provided
in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent that shall be a bank with an office in either or
both of Cleveland, Ohio and 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



76









 




retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.




               Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges 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 from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or related agreement or any document furnished
hereunder or thereunder.



ARTICLE IX



Miscellaneous




               SECTION 9.01. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:




     (a) if to Holdings or the Borrower, to it at Argo-Tech Corporation, 23555 Euclid
Avenue, Cleveland, Ohio 44117-1795, Attention of Frances St Clair (Telecopy No. (216)
692-6331);




     (b) if to the Administrative Agent or the Collateral Agent, to National City Agent
Services, 629 Euclid Avenue, 2nd Floor, Locator 01-3028, Cleveland, Ohio, Attention of
Scott Lankford (Telecopy No.(216) 222-0103), with a copy to National City Bank, 1900 East
Ninth Street, Locator 01-2083, Cleveland, Ohio 44114, Attention of Christian S. Brown
(Telecopy No. (216) 222-9396);




     (c) if to the Issuing Bank, to it at, as applicable,




	 	(i)	 	National City Bank, International Division #7532, P.O. Box
5101, 23000 Millcreek Boulevard, Cleveland, Ohio 44122, Attention of Patricia
Bounds (Telecopy No. (216) 488-7550), National City Bank, 1900 East Ninth
Street, Locator 01-2083, Cleveland, Ohio 44114, Attention of Christian S. Brown
(Telecopy No. (216) 222-9396), or
	 
	 	(ii)	 	JPMorgan Chase Bank, N.A., Standby Letter of Credit Department,
Global Trade Services, 10420 Highland Manor Dr., Tampa, Florida 33610,
Attention: Gina Thomas (Telecopy No. (813) 432-5161), with a




77









 












copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, New York 10017, Attention of
Stephen Simon (Telecopy No.(212) 270-5100);




     (d) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt.




               SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of
a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.



               (b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by Holdings, the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by
the Administrative Agent or the Collateral Agent, as applicable, and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Revolving Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving
Commitment, without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of this Section or the
definition of “Required Lenders” or any other provision of any Loan Document specifying the number
or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent



78









 




thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be), (vi) release Holdings or any
Subsidiary Loan Party from its Guarantee under the Parent Guarantee Agreement or the Subsidiary
Guarantee Agreement, as applicable (except as expressly provided in the Parent Guarantee Agreement
or the Subsidiary Guarantee Agreement, as applicable), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (vii) except in strict accordance with the
express provisions thereof, release all or any substantial part of the Collateral from the Liens of
the Security Documents, without the written consent of each Lender, or (viii) change any provisions
of any Loan Document in a manner that by its terms adversely affects the rights in respect of
payments due to Lenders holding Loans of any Class differently than those holding Loans of any
other Class, without the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Revolving Commitments of each affected Class (in addition to any
consents required under the foregoing provisions of this Section); provided further that
(A) no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent or the Issuing Bank without the prior written consent of
the Administrative Agent, the Collateral Agent or the Issuing Bank, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Consolidated Term Loan Lenders), the
Consolidated Term Loan Lenders (but not the Revolving Lenders) may be effected by an agreement or
agreements in writing entered into by Holdings, the Borrower and requisite percentage in interest
of the affected Class of Lenders.




               (c) The Borrower shall be permitted to replace any Lender that fails to consent to any
amendment, waiver or consent to any Loan Document requested by the Borrower, and supported by the
Required Lenders, with a replacement financial institution; provided that (i) no later than
sixty (60) days after the date on which the consent of the Required Lenders was obtained with
respect to such amendment, waiver or consent, the Borrower shall notify the Lender of the
Borrower’s intention to replace such Lender, (ii) such replacement does not conflict with any
applicable requirement of law, (iii) the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement,
(iv) the Borrower shall be liable to such replaced Lender under Section 2.15 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (v) the replacement financial institution, if not already a Lender, shall be
approved the Administrative Agent and, if such replaced Lender is a Revolving Lender, approved by
the Letter of Credit Issuer (which approvals shall not be withheld or delayed unreasonably), (vi)
the replaced Lender and the replacement financial institution shall be obligated to effect such
replacement in accordance with the provisions of Section 9.04 (provided that the Administrative
Agent agrees to waive the processing and recordation fee referred to therein in respect of a replacement pursuant to this Section
9.02(c)), (vii) until such time as such replacement shall be consummated, the Borrower shall pay
all additional amounts (if any) required pursuant to Section 2.14 or 2.16, as the case may be,
(viii) any such replacement shall not be deemed to be a waiver of any rights that (A) the Borrower,
the Administrative Agent or any other Lender shall have against the replaced Lender or (B) the
replaced Lender shall have against the Borrower, the Administrative Agent or any other Lender, (ix)
the provisions of Section 9.05 (and the Sections referenced therein) shall continue to benefit the
replaced Lender, and (x) the replacement financial institution has agreed to the respective
amendment, waiver or consent in connection with such replacement.



79









 





               Nothing in this Section 9.02(c) shall be construed to create or imply a basis to restrict,
delay or otherwise impair the exercise of any right or remedy of any of the Administrative Agent,
the Collateral Agent, any Lender or any Issuing Bank at any time upon and during the continuance of
any Default.



               SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent
and their Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Collateral Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection
of its rights in connection with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.



               (b) The Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan
Document or any other agreement or instrument contemplated hereby, the performance by the parties
to the Loan Documents of their respective obligations thereunder or the consummation of the
Effective Date Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter
of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor
a demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way
to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.



               (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Collateral Agent or the Issuing Bank under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the



80









 




Collateral Agent or the Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent,
the Collateral Agent or the Issuing Bank in its capacity as such. For purposes hereof, a Lender’s
“pro rata share” shall be determined based upon its share of the sum of the total Revolving
Exposures, outstanding Consolidated Term Loans and unused Revolving Commitments at the time.




               (d) To the extent permitted by applicable law, neither Holdings nor the Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Effective Date Transactions, any Loan or Letter of Credit or
the use of the proceeds thereof.



               (e) All amounts due under this Section shall be payable promptly after written demand
therefor.



               SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



               (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Commitment and the Loans at the time
owing to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:




     (A) the Borrower; provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below)
or, if an Event of Default under paragraph (a), (b), (h) or (i) of Article VII has occurred
and is continuing, any other assignee; and




     (B) the Administrative Agent and the Issuing Bank; provided that no consent of
the Administrative Agent or the Issuing Bank shall be required for an assignment of any



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Revolving Commitment to an assignee that is a Lender with a Revolving Commitment immediately
prior to giving effect to such assignment.




     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Revolving Commitment or
Loans of any Class, the amount of the Revolving Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall not be less
than $3,000,000, unless each of the Borrower and the Administrative Agent otherwise consent;
provided that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided that this
clause shall not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of its Revolving Commitment or one
Class of Loans;




     (C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee of
$3,500;




     (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and




     (E) in the case of an assignment to a CLO (as defined below), the assigning Lender
shall retain the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, provided that the Assignment and Acceptance between such Lender
and such CLO may provide that such Lender will not, without the consent of such CLO, agree
to any amendment, modification or waiver described in the first proviso to Section 9.02(b)
that affects such CLO.



               For purposes of this Section 9.04(b), the terms “Approved Fund” and “CLO” have
the following meanings:




“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund that invests in
bank loans and similar extension of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.




“CLO” means any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered or managed
by a Lender or an Affiliate of such Lender.



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               (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



               (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Revolving
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and Holdings, the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.



               (v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.



               (e) Any Lender may, without the consent of the Borrower, the Administrative Agent or the
Issuing Bank sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Revolving Commitment and the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) Holdings, the Borrower, the Administrative Agent, the Collateral Agent,
the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant,



83









 




agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.17(c) as though it were a Lender.




               (f) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.



               (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



               SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Revolving Commitments have not expired or
terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the
Revolving Commitments or the termination of this Agreement or any provision hereof.



               SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Document 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. Subject to compliance with



84









 




the provisions of Sections 4.01 and 4.02, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.




               SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal, ineffective or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality, ineffectiveness or unenforceability
without affecting the validity, legality and enforceability of the remaining provisions hereof; and
the invalidity, illegality, ineffectiveness or unenforceability of a particular provision in a
particular jurisdiction shall not make such provision invalid, illegal, ineffective or
unenforceable in any other jurisdiction.



               SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the Obligations held by such Lender then due, irrespective of whether or not such
Lender shall have made any demand under this Agreement. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender may have.



               SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of Ohio.



               (b) Each of Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Court of Common Pleas of the State
of Ohio sitting in Cuyahoga County, Ohio and of the United States District Court of the Northern
District of Ohio, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such
Ohio State or, to the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Document against Holdings, the Borrower or its properties in
the courts of any jurisdiction.



               (c) Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now



85









 




or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




               (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.



               SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.



               SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



               SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement,
(g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other
than Holdings or the Borrower. For the purposes of this Section, “Information” means all
information received from Holdings or the Borrower relating to Holdings or the Borrower or its
business, other than any



86









 




such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by Holdings or the
Borrower; provided that, in the case of information received from Holdings or the Borrower
after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.




               SECTION 9.13. Joint Lead Arrangers, et al. None of the Joint Lead Arrangers, Joint
Bookrunners, Syndication Agent or Documentation Agent shall have any duties or obligations, in such
capacities, under this Agreement.



               SECTION 9.14. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.



               SECTION 9.15. Existing Credit Agreement; Effectiveness of Amendment and Restatement.
Until this Agreement becomes effective in accordance with the terms of this Agreement, the Existing
Credit Agreement shall remain in full force and effect and shall not be affected hereby. After the
Fourth Restatement Effective Date, all obligations of the Borrower under the Existing Credit
Agreement shall become obligations of the Borrower hereunder, guaranteed by the Parent Guarantee Agreement and the Subsidiary Guarantee Agreements and
secured by the Security Documents, and the provisions of the Existing Credit Agreement shall be
superseded by the provisions hereof.


[No additional provisions are on this page; the pages next following are the signature pages.]





87










 






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




	 	 	 	 	 	 	 	 	 
	AT HOLDINGS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Michael S. Lipscomb 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael S. Lipscomb	 	 
	 

	 	 	 	Title:
	 	Chairman, President and	 	 
	 

	 	 	 	 	 	Chief Executive Officer	 	 






	 	 	 	 	 	 	 	 	 
	ARGO-TECH CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Frances S. St.Clair 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Frances S. St.Clair	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	 	 	Chief Financial Officer	 	 






	 	 	 	 	 	 	 	 	 
	NATIONAL CITY BANK, as

Administrative Agent, as Issuing Bank and

as a Lender,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Christian S. Brown 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Christian S. Brown	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as

Syndication Agent, Issuing Bank and as a 

Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Matthew H. Massie 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Matthew H. Massie 	 	 
	 

	 	 	 	Title:	 	Managing Director 	 	 






89









 






	 	 	 	 	 	 	 	 	 
	GENERAL ELECTRIC CAPITAL

CORPORATION, as Co-Documentation 

Agent and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Kelly Stotler 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Kelly Stotler 	 	 
	 

	 	 	 	Title:	 	Duly Authorized Signatory	 	 






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	FIRSTMERIT BANK, N.A., as Co-

Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	/s/ Kim Gottfried 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Kim Gottfried	 	 
	 

	 	 	 	Title:	 	Senior Vice President	 	 







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