exv10w1






Exhibit 10.1



EXECUTION VERSION




 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT,




dated as of October 26, 2009,




(amending and restating the Amended and Restated Credit Agreement, dated as of June 8, 2007

as further amended or otherwise modified as of the date hereof)




among




FERRO CORPORATION




and




CERTAIN OF ITS DESIGNATED SUBSIDIARIES

FROM TIME TO TIME PARTY HERETO,

as the Borrowers,




VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS

FROM TIME TO TIME PARTY HERETO,

as the Lenders,




CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as the Term Loan Administrative Agent,




PNC BANK, NATIONAL ASSOCIATION,

as the Revolving Loan Administrative Agent




NATIONAL CITY BANK,

as the Collateral Agent,




KEYBANK NATIONAL ASSOCIATION,

as the Documentation Agent




and




CITIGROUP GLOBAL MARKETS, INC.,

as the Syndication Agent




CREDIT SUISSE SECURITIES (USA) LLC

and

NATIONAL CITY BANK,

as Joint Lead Arrangers and Joint Bookrunners




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 
	SECTION 1.1 Defined Terms
	 	 	2	 
	SECTION 1.2 Use of Defined Terms
	 	 	34	 
	SECTION 1.3 Cross-References
	 	 	34	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	34	 
	SECTION 1.5 Exchange Rates; Currency Equivalents
	 	 	35	 
	SECTION 1.6 Redenomination of Certain Foreign Currencies
and Computation of Dollar Amounts
	 	 	35	 
	SECTION 1.7 American Legal Terms
	 	 	36	 
	 
	 	 	 	 
	ARTICLE II

	COMMITMENTS, BORROWING AND ISSUANCE

	PROCEDURES, NOTES AND LETTERS OF CREDIT

	 
	 	 	 	 
	SECTION 2.1 Commitments
	 	 	36	 
	SECTION 2.2 Reduction of the Commitment Amounts
	 	 	38	 
	SECTION 2.3 Borrowing Procedures
	 	 	38	 
	SECTION 2.4 Continuation and Conversion Elections
	 	 	40	 
	SECTION 2.5 Alternate Currency Loans
	 	 	40	 
	SECTION 2.6 Funding
	 	 	41	 
	SECTION 2.7 Issuance Procedures
	 	 	42	 
	SECTION 2.8 Registers; Notes
	 	 	45	 
	SECTION 2.9 Designated Borrowers
	 	 	46	 
	SECTION 2.10 Defaulting Lenders
	 	 	47	 
	 
	 	 	 	 
	ARTICLE III

	REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

	 
	 	 	 	 
	SECTION 3.1 Repayments and Prepayments; Application
	 	 	49	 
	SECTION 3.2 Interest Provisions
	 	 	56	 
	SECTION 3.3 Fees
	 	 	57	 
	 
	 	 	 	 
	ARTICLE IV

	CERTAIN LIBO RATE AND OTHER PROVISIONS

	 
	 	 	 	 
	SECTION 4.1 LIBO Rate Lending Unlawful
	 	 	58	 
	SECTION 4.2 Deposits Unavailable
	 	 	58	 
	SECTION 4.3 Increased LIBO Rate Loan Costs, etc
	 	 	59	 
	SECTION 4.4 Funding Losses
	 	 	59	 
	SECTION 4.5 Increased Capital Costs
	 	 	59	 
	SECTION 4.6 Taxes
	 	 	60	 
	SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc
	 	 	61	 
	SECTION 4.8 Sharing of Payments
	 	 	63	 
	SECTION 4.9 Setoff
	 	 	63	 
	SECTION 4.10 Removal of Lenders
	 	 	63	 
	SECTION 4.11 Guaranty by the Company
	 	 	64	 






i









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	ARTICLE V

	CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSION

	 
	 	 	 	 
	SECTION 5.1 Effectiveness
	 	 	66	 
	SECTION 5.2 All Credit Extensions
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VI

	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	SECTION 6.1 Organization, etc
	 	 	67	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc
	 	 	67	 
	SECTION 6.3 Government Approval, Regulation, etc
	 	 	67	 
	SECTION 6.4 Validity, etc
	 	 	67	 
	SECTION 6.5 Financial Information
	 	 	67	 
	SECTION 6.6 No Material Adverse Change
	 	 	68	 
	SECTION 6.7 Litigation, Labor Controversies, etc
	 	 	68	 
	SECTION 6.8 Subsidiaries
	 	 	68	 
	SECTION 6.9 Ownership of Properties
	 	 	68	 
	SECTION 6.10 Taxes; Other Laws
	 	 	68	 
	SECTION 6.11 Pension and Welfare Plans
	 	 	69	 
	SECTION 6.12 Environmental Warranties
	 	 	69	 
	SECTION 6.13 Accuracy of Information
	 	 	70	 
	SECTION 6.14 Regulations U and X
	 	 	70	 
	SECTION 6.15 Solvency
	 	 	70	 
	 
	 	 	 	 
	ARTICLE VII

	COVENANTS

	 
	 	 	 	 
	SECTION 7.1 Affirmative Covenants
	 	 	71	 
	SECTION 7.2 Negative Covenants
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VIII

	EVENTS OF DEFAULT

	 
	 	 	 	 
	SECTION 8.1 Listing of Events of Default
	 	 	84	 
	SECTION 8.2 Action if Bankruptcy
	 	 	86	 
	SECTION 8.3 Action if Other Event of Default
	 	 	86	 
	 
	 	 	 	 
	ARTICLE IX

	THE AGENTS

	 
	 	 	 	 
	SECTION 9.1 Actions
	 	 	86	 
	SECTION 9.2 Funding Reliance, etc
	 	 	87	 
	SECTION 9.3 Exculpation
	 	 	87	 
	SECTION 9.4 Successor
	 	 	87	 
	SECTION 9.5 Loans by the Agents
	 	 	88	 
	SECTION 9.6 Credit Decisions
	 	 	88	 
	SECTION 9.7 Copies, etc
	 	 	88	 
	SECTION 9.8 Reliance by the Agents
	 	 	88	 
	SECTION 9.9 Defaults
	 	 	89	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	SECTION 9.10 Posting of Approved Electronic Communications
	 	 	89	 
	SECTION 9.11 Joint Lead Arrangers, Documentation Agent and Syndication Agent
	 	 	90	 
	 
	 	 	 	 
	ARTICLE X

	MISCELLANEOUS PROVISIONS

	 
	 	 	 	 
	SECTION 10.1 Waivers, Amendments, etc
	 	 	90	 
	SECTION 10.2 Notices; Time
	 	 	91	 
	SECTION 10.3 Payment of Costs and Expenses
	 	 	92	 
	SECTION 10.4 Indemnification
	 	 	92	 
	SECTION 10.5 Survival
	 	 	93	 
	SECTION 10.6 Severability
	 	 	94	 
	SECTION 10.7 Headings
	 	 	94	 
	SECTION 10.8 Execution in Counterparts, Effectiveness, etc
	 	 	94	 
	SECTION 10.9 Governing Law; Entire Agreement
	 	 	94	 
	SECTION 10.10 Successors and Assigns
	 	 	94	 
	SECTION 10.11 Sale and Transfer of Credit Extensions; Participations in Credit Extensions; Notes
	 	 	94	 
	SECTION 10.12 Other Transactions
	 	 	97	 
	SECTION 10.13 Forum Selection and Consent to Jurisdiction
	 	 	97	 
	SECTION 10.14 Waiver of Jury Trial
	 	 	98	 
	SECTION 10.15 Patriot Act
	 	 	98	 
	SECTION 10.16 Judgment Currency
	 	 	98	 
	SECTION 10.17 Confidentiality
	 	 	98	 
	SECTION 10.18 Counsel Representation
	 	 	99	 
	SECTION 10.19 Effect of Amendment and Restatement of the Existing Credit Agreement
	 	 	100	 







iii









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	SCHEDULE I

	 	-
	 	Disclosure Schedule
	SCHEDULE II

	 	-
	 	Percentages; LIBOR Office; Domestic Office
	SCHEDULE III

	 	-
	 	Mortgaged Properties
	 
	EXHIBIT A-1

	 	-
	 	Form of Original Revolving Loan Note
	EXHIBIT A-2

	 	-
	 	Form of Extended Revolving Loan Note
	EXHIBIT A-3

	 	-
	 	Form of Original Term Loan Note
	EXHIBIT A-4

	 	-
	 	Form of New Term Loan Note
	EXHIBIT A-5

	 	-
	 	Form of Swingline Note
	EXHIBIT B-1

	 	-
	 	Form of Borrowing Request
	EXHIBIT B-2

	 	-
	 	Form of Issuance Request
	EXHIBIT C

	 	-
	 	Form of Continuation/Conversion Notice
	EXHIBIT D

	 	-
	 	Form of Lender Assignment Agreement
	EXHIBIT E

	 	-
	 	Form of Compliance Certificate
	EXHIBIT F

	 	-
	 	Conformed Copy of Subsidiary Guaranty (Domestic)
	EXHIBIT G

	 	-
	 	Conformed Copy of Pledge and Security Agreement
	EXHIBIT H

	 	-
	 	Conformed Copy of Collateral Sharing Agreement
	EXHIBIT I-1

	 	-
	 	Form of Designated Borrower Request and Assumption Agreement
	EXHIBIT 1-2

	 	-
	 	Form of Designated Borrower Notice
	EXHIBIT J

	 	-
	 	Form of Affirmation and Consent
	EXHIBIT K

	 	-
	 	Form of First Restatement Effective Date Certificate
	EXHIBIT L

	 	-
	 	Form of Second Restatement Effective Date Certificate







iv









 




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 26, 2009, is among
FERRO CORPORATION, an Ohio corporation (the “Company”), certain Subsidiaries of the Company
from time to time party hereto (each a “Designated Borrower” and together with the Company,
each a “Borrower” and collectively the “Borrowers”), the various financial
institutions and other Persons from time to time party hereto (the “Lenders”), CREDIT
SUISSE, CAYMAN ISLANDS BRANCH (“CS”), as the administrative agent for the Term Loan Lenders
(in such capacity, the “Term Loan Administrative Agent”), PNC BANK, NATIONAL ASSOCIATION
(“PNC Bank”), as the administrative agent for the Revolving Loan Lenders (in such capacity,
the “Revolving Loan Administrative Agent”, and together with the Term Loan Administrative
Agent, each an Administrative Agent and collectively the “Administrative Agents”), NATIONAL
CITY BANK (“National City”), as the collateral agent for the Secured Parties (in such
capacity, the “Collateral Agent”), KEYBANK NATIONAL ASSOCIATION as the documentation agent
(in such capacity, the “Documentation Agent”), and CITIGROUP GLOBAL MARKETS, INC., as the
syndication agent (in such capacity, the “Syndication Agent”).



W I T N E S S E T H:




     WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of June 8, 2007 (as
the same may have been amended or otherwise modified prior to the date hereof, the “Existing
Credit Agreement”), among the Borrowers, the lenders party thereto (the “Existing
Lenders”), CS, as administrative agent for the Existing Lenders with a commitment to make Term
Loans thereunder, National City, as administrative agent for the Existing Lenders with an Original
Revolving Loan Commitment (as defined below) thereunder and as the collateral agent, and the other
agents, the Existing Lenders committed to extend to the Borrowers a $300,000,000 revolving credit
facility to make revolving loans (the “Original Revolving Loans”) (such term and each other
capitalized term used but not defined in the preamble and the recitals having the meanings provided
in Section 1.1), and provided term loans to the Borrowers in the aggregate principal amount
of $305,000,000 (the “Original Term Loans”, and collectively with the Original Revolving
Loans, the “Original Loans”);



     WHEREAS, the Borrowers have requested that the Existing Credit Agreement be amended on the
Second Restatement Effective Date to, among other things, create new tranches of Commitments and
Loans on and subject to the terms and conditions of this Agreement and pay fees, costs and expenses
related thereto (the foregoing, together with the Equity Offering (as defined below) and all other
transactions related hereto, collectively, the “Transaction”);



     WHEREAS, the Borrowers have requested, and the Lenders (including certain of the Existing
Lenders) have agreed (subject to the terms of this Agreement), that the Existing Credit Agreement
be amended to read as set forth in this Agreement, and it has been agreed by the parties to the
Existing Credit Agreement that the Original Loans that are not being repaid and other “Obligations”
(under, and as defined in, the Existing Credit Agreement) shall be governed by and deemed to be
outstanding under this Agreement with the intent that the terms of this Agreement shall supersede
the terms of the Existing Credit Agreement (each of which shall hereafter have no further effect
upon the parties thereto); provided that any Rate Protection Agreements with any one or more
Existing Lenders (or their respective Affiliates) shall continue unamended and in full force and
effect; and



     WHEREAS, all Obligations are and shall continue to be secured by all collateral on which a
Lien is granted to the Collateral Agent pursuant to any Loan Document.



1









 





     NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Existing Credit
Agreement, and the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     SECTION
1.1 Defined Terms. The following terms (whether or not underscored) when used in this
Agreement, including its preamble and recitals, shall, except where the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the singular and plural
forms thereof):



     “Account” means any account (as that term is defined in Section 9-102 of the UCC) of
the Company or any of its Subsidiaries arising from the sale or lease of goods or rendering of
services.



     “Account Debtor” means any Person who is or who may become obligated under, with
respect to, or on account of, an account, chattel paper, or a general intangible, in each case, as
such term is defined under the UCC.



     “Administrative Agent” and “Administrative Agents” are defined in the
preamble and include each other Person appointed as a successor Administrative Agent
pursuant to Section 9.4.



     “Affected Lender” is defined in Section 4.10.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a Person means
the power, directly or indirectly, (a) to vote 10% or more of the Capital Securities (on a fully
diluted basis) of such Person having ordinary voting power for the election of directors, managing
members or general partners (as applicable) or (b) to direct or cause the direction of the
management and policies of such Person (whether by contract or otherwise).



     “Affirmation and Consent” means the Affirmation and Consent, dated as of the Second
Restatement Effective Date, among each Subsidiary Guarantor and the Collateral Agent, substantially
in the form of Exhibit J hereto.



     “Agents” means, collectively, the Administrative Agents and the Collateral Agent.



     “Agreement” means, on any date, this Second Amended and Restated Credit Agreement as
originally in effect on the Second Restatement Effective Date and as the same may thereafter from
time to time be further amended, supplemented, amended and restated or otherwise modified and in
effect on such date.



     “Alternate Base Rate” means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum equal to the higher of (a) the Base Rate in effect on such
day; (b) the Federal Funds Rate in effect on such day plus 1/2 of 1% and (c) the Daily LIBO Rate in
effect on such day plus 1%. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The applicable Administrative Agent will give notice promptly to the Company and the
Lenders of changes in the Alternate Base Rate; provided that the failure to give such notice shall
not affect the Alternate Base Rate in effect after such change.



     “Alternate Currency” means Euros or Yen, as the case may be.



2









 






     “Alternate Currency Commitment” means, relative to any Lender, such Lender’s
obligation (if any) to make Alternate Currency Loans pursuant to clause (a) of Section
2.1.1.



     “Alternate Currency Commitment Amount” means, on any date, a maximum amount equal to
the Dollar Equivalent of $100,000,000, as such amount may be permanently reduced by Section
2.2.



     “Alternate Currency Equivalent” means, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Alternate Currency as determined by the
Revolving Loan Administrative Agent at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of such Alternate Currency with
Dollars.



     “Alternate Currency Loan” means any Revolving Loan denominated in an Alternate
Currency.



     “Amendment Agreement” means the Amendment and Restatement and Resignation and
Appointment Agreement dated as of October 26, 2009 among the Company, the Administrative Agents and
the Lenders party thereto, to which this Agreement shall be attached.



     “Amendment No. 4” means that certain Fourth Amendment to the Existing Credit Agreement
dated as of March 11, 2009, among the Company, the Administrative Agents and the Lenders party
thereto.



     “Amendment No. 4 Effective Date” means the date of satisfaction of the conditions
referred to in Article II of Amendment No. 4.



     “Applicant Borrower” is defined in clause (a) of Section 2.9.



     “Applicable Commitment Fee Margin” means with respect to the Revolving Loan
Commitment, (a) prior to the Amendment No. 4 Effective Date, the applicable percentage then in
effect under the Existing Credit Agreement (prior to giving effect to Amendment No. 4) pursuant to
the terms thereof, (b) as of the Amendment No. 4 Effective Date to the date on which the
Administrative Agents receive a Compliance Certificate pursuant to clause (c) of
Section 7.1.1 for the Fiscal Quarter ending March 31, 2009, 0.75% and (c) thereafter, the
applicable percentage set forth below determined by reference to the Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agents pursuant to clause
(c) of Section 7.1.1:



	 	 	 	 	 
	 	 	 	 	Applicable
	 	 	 	 	Commitment
	 	 	 	 	Fee Margin
	 	 	 	 	for Revolving
	 	 	Leverage Ratio	 	Loan Commitment
	Level I
	 	<3.50:1
	 	0.50%
	Level II
	 	≥3.50:1 but < 4.00:1
	 	0.50%
	Level III
	 	≥4.00:1 but <5.00:1
	 	0.75%
	Level IV
	 	≥5.00:1
	 	0.75%






     Changes in the Applicable Commitment Fee Margin resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following delivery by
the Company to the Administrative Agents of a new Compliance Certificate pursuant to clause
(c) of Section 7.1.1;



3









 







provided that if a Compliance Certificate is not delivered when
due in accordance with such Section, then the Applicable Commitment Fee Margin shall increase to
the next higher level above the Applicable Commitment Fee Margin then in effect, which increased
Applicable Commitment Fee Margin shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered.



     In the event that any financial statement or Compliance Certificate for any period ending on
or after December 31, 2008 delivered pursuant to clauses (a), (b) or (c) of
Section 7.1.1 is inaccurate (regardless of whether this Agreement or the Revolving Loan
Commitments are in effect when such inaccuracy is discovered) (it being understood and agreed that
a change in GAAP that has a retroactive effect shall not cause previously delivered financial
statements or Compliance Certificates to be deemed to be inaccurate), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Commitment Fee Margin for any
period (an “Applicable Period”) than the Applicable Commitment Fee Margin applied for such
Applicable Period, then (i) the Company shall immediately deliver to the Administrative Agents a
corrected financial statement and a corrected Compliance Certificate for such Applicable Period,
(ii) the Applicable Commitment Fee Margin shall be determined based on the corrected Compliance
Certificate for such Applicable Period, and (iii) the Company shall immediately pay to the
Revolving Loan Administrative Agent (for the account of the Revolving Loan Lenders during the
Applicable Period or their successors and assigns) the accrued additional commitment fees owing as
a result of such increased Applicable Commitment Fee Margin for such Applicable Period. This
paragraph shall not limit the rights of the Administrative Agents or the Lenders with respect to
Article VIII hereof, and shall survive the termination of this Agreement for a period of
two years.



     “Applicable Margin” means:



     (a) with respect to Term Loans, (i) prior to the Amendment No. 4 Effective Date, 1.00% for
Base Rate Loans and 2.00% for LIBO Rate Loans and (ii) on and after the Amendment No. 4 Effective
Date, 5.00% for Base Rate Loans and 6.00% for LIBO Rate Loans; and



     (b) with respect to Revolving Loans and Swing Line Loans, (i) prior to the Amendment No. 4
Effective Date, the applicable percentage then in effect under the Existing Credit Agreement (prior
to giving effect to Amendment No. 4) pursuant to the terms thereof, (ii) from the Amendment No. 4
Effective Date to the date on which the Administrative Agents receive a Compliance Certificate
pursuant to clause (c) of Section 7.1.1 for the Fiscal Quarter ending March 31,
2009, 5.00% per annum for Base Rate Loans and 6.00% per annum for LIBO Rate Loans and (c)
thereafter, the applicable percentage set forth below determined by reference to the Leverage Ratio
as set forth in the most recent Compliance Certificate received by the Administrative Agents
pursuant to clause (c) of Section 7.1.1:



	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	Applicable
	 	 	 	 	Margin for	 	Margin for
	 	 	 	 	Revolving	 	Revolving
	 	 	Leverage Ratio	 	Base Rate Loans	 	LIBO Rate Loans
	Level I
	 	<3.50:1
	 	3.50%
	 	4.50%
	Level II
	 	≥3.50:1 but <4.00:1
	 	4.00%
	 	5.00%
	Level III
	 	≥4.00:1 but <5.00:1
	 	4.50%
	 	5.50%
	Level IV
	 	≥5.00:1
	 	5.00%
	 	6.00%







4











 





          Changes in the Applicable Margin pursuant to this clause (b) resulting from a
change in the Leverage Ratio shall become effective as of the first Business Day immediately
following delivery by the Company to the Administrative Agents of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1;
provided that if a Compliance Certificate
is not delivered when due in accordance with such Section, then the Applicable Margin shall
increase to the next higher level above the Applicable Margin then in effect, which increased
Applicable Margin shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered.




          In the event that any financial statement or Compliance Certificate for any period ending on
or after December 31, 2008 delivered pursuant to clauses (a), (b) or (c) of
Section 7.1.1 is inaccurate (regardless of whether this Agreement or the Revolving Loan
Commitments are in effect when such inaccuracy is discovered) (it being understood and agreed that
a change in GAAP that has a retroactive effect shall not cause previously delivered financial
statements or Compliance Certificates to be deemed to be inaccurate), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Margin for any period (an
“Applicable Period”) than the Applicable Margin applied for such Applicable Period, then
(i) the Company shall immediately deliver to the Administrative Agents a corrected financial
statement and a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable
Margin shall be determined based on the corrected Compliance Certificate for such Applicable
Period, and (iii) the Company shall immediately pay to the Revolving Loan Administrative Agent (for
the account of the Revolving Loan Lenders during the Applicable Period or their successors and
assigns) the accrued additional interest owing as a result of such increased Applicable Margin for
such Applicable Period. This paragraph shall not limit the rights of the Administrative Agents or
the Lenders with respect to Section 3.2.2 and Article VIII hereof, and shall
survive the termination of this Agreement for a period of two years.




     “Approved Fund” means any Person (other than a natural Person) that (a) is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (b) is administered, advised or managed by a
Lender, an Affiliate of a Lender or a Person or an Affiliate of a Person that administers, advises
or manages a Lender.



     “Authorized Officer” means, relative to any Obligor, those of its officers, general
partners, managing members or other authorized person(s) (as applicable) whose signatures and
incumbency shall have been certified to the Administrative Agents, the Lenders and the Issuers
pursuant to the Amendment Agreement.



     “Available” means, in respect of any Alternate Currency and any Lender, that such
Alternate Currency is, at the relevant time, readily available to such Lender as deposits in the
London or other applicable interbank market in the relevant amount and for the relevant term, is
freely convertible into Dollars and is freely transferable for the purposes of this Agreement, but
if, notwithstanding that each of the foregoing tests is satisfied:




     (a) such Alternate Currency is, under the then current legislation or regulations of
the country of such Alternate Currency (or under the policy of the central bank of such
country) or the F.R.S. Board, not permitted to be used for the purposes of this Agreement;




     (b) there is no, or only insignificant, investor demand for the making of advances
having an interest period equivalent to that for the LIBO Rate Loan denominated in an
Alternate Currency which the Borrowers have requested be made; or




     (c) there are policy or other reasons which make it undesirable or impractical for a
Lender to make a LIBO Rate Loan denominated in such Alternate Currency available as
determined by such Lender in its sole discretion;



5









 




then such Alternate Currency may be treated by any Lender as not being Available.




     “Base Rate” means, at any time, (a) with respect to Term Loans, excluding Specified
Term Loan Tranches, the rate of interest per annum then most recently established by CS in New
York, New York as its base rate for Dollars loaned in the United States and (b) with respect to
Revolving Loans and Swing Line Loans, the rate of interest per annum announced from time to time by
the Revolving Loan Administrative Agent at its Domestic Office as its then prime rate for Dollars
loaned in the United States. The Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agents in connection with extensions of credit.



     “Base Rate Loan” means a Loan denominated in Dollars bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.



     “Borrower” and “Borrowers” are defined in the preamble.



     “Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans,
having the same Interest Period made by all Lenders required to make such Loans on the same
Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of a Borrower substantially in the form of Exhibit B-1 hereto.



     “Business Day” means: (a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York; and (b)
relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day which is
a Business Day described in clause (a) above and (i) on which dealings in the relevant
currency are carried on in the London interbank eurodollar market and (ii) in the case of LIBO Rate
Loans denominated in an Alternate Currency, on which banks in the country for which such Alternate
Currency is the lawful currency are not authorized or required to be closed.



     “Capital Expenditures” means, for any period, the aggregate amount of all expenditures
of the Company and its Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures on the Company’s Consolidated
Statement of Cash Flows.



     “Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the Closing Date.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which have
been (or, in accordance with GAAP, should be) classified as capitalized leases, and for purposes of
each Loan Document the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a premium or a penalty.



     “Cash Collateralize” means, with respect to a Letter of Credit, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
Revolving Loan Administrative Agent on terms satisfactory to the Revolving Loan Administrative
Agent in an amount equal to the Stated Amount of such Letter of Credit.



6









 





     “Cash Equivalent Investment” means, at any time:




     (a) any direct obligation of (or unconditionally guaranteed by) the United States or a
State thereof (or any agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of the United States or a State
thereof) maturing not more than one year after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by (i) a corporation (other than an Affiliate of any Obligor) organized under the
laws of any State of the United States or of the District of Columbia and rated A-1 or
higher by S&P or P-1 or higher by Moody’s, or (ii) any Lender (or its holding company);




     (c) any certificate of deposit, time deposit or bankers acceptance, maturing not more
than one year after its date of issuance, which is issued by either (i) any bank organized
under the laws of the United States (or any State thereof) and which has (x) a credit rating
of A2 or higher from Moody’s or A or higher from S&P and (y) a combined capital and surplus
greater than $500,000,000, or (ii) any Lender; or




     (d) any repurchase agreement having a term of 30 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in clause
(c)(i) which (i) is secured by a fully perfected security interest in any obligation of
the type described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder.



     “Casualty Event” means the damage, destruction or condemnation, as the case may be, of
property of any Person or any of its Subsidiaries.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.



     “CERCLIS” means the Comprehensive Environmental Response Compensation Liability
Information System List.



     “Change in Control” means:




     (a) any person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act), shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of, or enter into contracts or arrangements whereby they will
acquire or control, directly or indirectly, Capital Securities or Voting Securities
representing 25% or more of the Capital Securities or Voting Securities of the Company on a
fully diluted basis;




     (b) during any period of up to 24 consecutive months, individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with any new
directors whose election to such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of at least two-thirds of the directors then still in
office who were either directors at the beginning of such period or whose election or
nomination for
election was previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Company then in office; or



7









 







     (c) the shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement or agreements for the sale or disposition by the Company of all or
substantially all of the Company’s assets.



     “Closing Date” means June 6, 2006.



     “Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



     “Collateral Agent” is defined in the preamble and includes each other Person
appointed as the successor Collateral Agent pursuant to Section 9.4.



     “Collateral Sharing Agreement” means the Collateral Sharing Agreement, dated as of the
Closing Date, among the Obligors, the Collateral Agent and J.P. Morgan Trust Company, National
Association, as trustee under the Indentures, a conformed copy of which is attached as Exhibit
H hereto, as amended, supplemented, amended and restated or otherwise modified from time to
time.



     “Collections” means all cash, checks, notes, instruments and other items of payment
(including insurance proceeds, proceeds of cash sales, rental proceeds and Tax refunds) of the
Company and its Subsidiaries.



     “Commitment” means, as the context may require, the Original Revolving Loan
Commitment, the Extended Revolving Loan Commitment, the Alternate Currency Commitment, the Letter
of Credit Commitment or the Swing Line Loan Commitment.



     “Commitment Amount” means, as the context may require, the Alternate Currency
Commitment Amount, the Original Revolving Loan Commitment Amount, the Extended Revolving Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line Loan Commitment Amount.



     “Commitment Termination Event” means:




     (a) the occurrence of any Event of Default with respect to the Company described in
clauses (a) through (d) of Section 8.1.9; or




     (b) the occurrence and continuance of any other Event of Default and either:




     (i) the declaration of all or any portion of the Loans to be due and payable
pursuant to Section 8.3, or




     (ii) the giving of notice by the Administrative Agents, acting at the direction
of the Required Lenders, to the Company that the Commitments have been terminated.



     “Communications” is defined in clause (a) of Section 9.10.



     “Company” is defined in the preamble.



     “Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of the Company, substantially in the form of Exhibit E hereto, together
with such changes thereto
as the Administrative Agents may from time to time request for the purpose of monitoring the
Company’s compliance with the financial covenants contained herein.



8









 





     “Consenting Term Loan Lender” means each Original Term Loan Lender that executes and
delivers a signature page to the Amendment Agreement specifically in the capacity of an Original
Term Loan Lender, indicating its consent to the terms of the Amendment Agreement and this
Agreement.



     “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby. For the avoidance of doubt, “Contingent
Liability” shall not include “take-or-pay” obligations for less than twelve months for inventory
acquired in the ordinary course of business; provided that such twelve-month limitation shall not
apply to “take-or-pay” obligations with respect to natural gas acquired in the ordinary course of
business.



     “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of the Company, substantially in the form of
Exhibit C hereto.



     “Control Agreement” means an agreement in form and substance satisfactory to the
Collateral Agent which provides for the Collateral Agent to have “control” (as defined in
Section 8-106 of the UCC, as such term relates to investment property (other than certificated
securities or commodity contracts), or as used in Section 9-106 of the UCC, as such term relates to
commodity contracts, or as used in Section 9-104(a) of the UCC, as such term relates to deposit
accounts).



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Company, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.



     “Copyright Pledge and Security Agreement” means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to the Security
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “Credit Extension” means, as the context may require: (a) the making of a Loan by a
Lender; or (b) the issuance of any Letter of Credit, or the extension of any Stated Expiry Date of
any existing Letter of Credit, by an Issuer.



     “CS” is defined in the preamble.



     “Currency” and “Currencies” means Dollars, Euros and Yen.



     “Current GAAP Financials” is defined in Section 1.4.



     “Daily LIBO Rate” means, for any day, (a) a fluctuating rate of interest per annum
determined by the applicable Administrative Agent by dividing (i) the Published Rate for such day
by (ii) a number equal to 1.00 minus the percentage prescribed by the Federal Reserve for
determining the maximum
reserve requirements with respect to any eurocurrency funding by banks on such day or (b) the
LIBO Rate (Reserve Adjusted) for a one-month Interest Period on such day (or if such day is not a
Business Day, the immediately preceding Business Day). Changes in the rate of interest on that
portion of any



9









 







Swing Line Loans maintained as Daily LIBO Rate Loans will take effect simultaneously
with each change in the Daily LIBO Rate.



     “Daily LIBO Rate Loan” means a Swing Line Loan made pursuant to clause (ii) of
the second sentence of Section 2.3.2(a) denominated in Dollars bearing interest at a rate
determined by reference to the Daily LIBO Rate.



     “Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time or both, would constitute an Event of Default.



     “Defaulting Lender” means any Revolving Loan Lender that has failed to fund any
portion of its Revolving Loans, participations in Letters of Credit or participations in Swing Line
Loans within three Business Days of the date required to be funded by it hereunder, or any
Revolving Loan Lender that has (a) notified the Company, the Revolving Loan Administrative Agent,
the Issuer, the Swing Line Lender or any Revolving Loan Lender in writing that it does not intend
to comply with any or all of its funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it commits to extend credit, (b) failed, within three
Business Days after a request by the Revolving Loan Administrative Agent, to confirm that it will
comply with the terms of this Agreement relating to its obligations to fund prospective Revolving
Loans, participations in then outstanding Letters of Credit and participations in then outstanding
Swing Line Loans, (c) otherwise failed to pay over to the Revolving Loan Administrative Agent or
any other Revolving Loan Lender any other amount required to be paid by it hereunder within three
Business Days of the date when due, unless the subject of a good faith dispute, or (d) (i) become
or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval
of or acquiescence in any such proceeding or appointment or has a parent company that has become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee
or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment.



     “Deposit Account” means a “deposit account” as that term is defined in Section
9-102(a) of the UCC.



     “Designated Borrower” is defined in the preamble.



     “Designated Borrower Notice” is defined in clause (a) of Section 2.9.



     “Designated Borrower Obligations” means all Obligations of each Designated Borrower.



     “Designated Borrower Request and Assumption Agreement” is defined in clause
(a) of Section 2.9.



     “Disbursement” is defined in Section 2.7.2.



     “Disbursement Date” is defined in Section 2.7.2.



     “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule
I, as it may be amended, supplemented, amended and restated or otherwise modified from time to
time by the Company with the written consent of the Required Lenders.



10









 





     “Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease, contribution or other conveyance (including by way of merger) of, or the granting of
options, warrants or other rights to, any of the Borrowers’ or their Subsidiaries’ assets
(including accounts receivable and Capital Securities of Subsidiaries) to any other Person in a
single transaction or series of transactions.



     “Documentation Agent” is defined in the preamble.



     “Dollar” and the sign “$” mean lawful money of the United States.



     “Dollar Equivalent” means, as of any date of determination, (a) as to any amount
denominated in Dollars, such amount in Dollars, and (b) as to any amount denominated in an
Alternate Currency, the equivalent amount thereof in Dollars as determined by the Revolving Loan
Administrative Agent on the basis of the Spot Rate for the purchase of Dollars with such Alternate
Currency.



     “Domestic Office” means the office of a Lender designated as its “Domestic Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office within the
United States as may be designated from time to time by notice from such Lender to the applicable
Administrative Agent and the Company.



     “EBITDA” means, for any applicable period, the sum of (a) Net Income, plus (b) to the
extent deducted in determining Net Income, the sum of (i) amounts attributable to amortization,
(ii) income tax expense, (iii) Interest Expense, (iv) depreciation of assets, (v) expenses incurred
in connection with the Company’s accounting investigations and audit expenses in an aggregate
amount not to exceed $10,000,000 for each of the 2005 Fiscal Year and 2006 Fiscal Year,
respectively, none of which remains available as of the Amendment No. 4 Effective Date, (vi)
restructuring expenses (including expenses relating to modifications to the Company’s retirement
programs) in an aggregate amount not to exceed $30,000,000 in the aggregate for the 2006 and 2007
Fiscal Years, none of which remains available as of the Amendment No. 4 Effective Date, (vii)
restructuring expenses related to additional restructuring initiatives for the 2007, 2008 and 2009
Fiscal Years in an amount not to exceed $30,000,000 in any such Fiscal Year or $45,000,000 in the
aggregate, of which approximately $6,000,000 remains available as of September 30, 2008, (viii)
restructuring expenses that are related to cost-savings initiatives related to additional
restructuring initiatives for the 2009 and 2010 Fiscal Years in an aggregate amount not to exceed
$36,000,000, (ix) non-cash pension expenses with respect to the 2009 Fiscal Year incurred in excess
of cash contributions in connection with pension plans in an aggregate amount not to exceed
$14,000,000 in such Fiscal Year, (x) non-recurring fees, cash charges and other cash expenses paid
in connection with the preparation, negotiation, approval, execution and delivery of Amendment No.
4 (including the fees and expenses of the consultant referred to in Section 7.1.14), (xi) non-cash
expenses incurred in connection with asset write-offs, including, but not limited to, goodwill
impairments, (xii) if applicable, any swap or hedge breakage costs relating to interest rate swaps
or hedges in effect on the Amendment No. 4 Effective Date (including, without limitation, any such
costs incurred in connection with a prepayment of the Term Loans) to the extent any such costs do
not constitute Interest Expense, (xiii) non-cash losses resulting from mark-to-market accounting
treatment of interest rate hedging agreements, (xiv) non-cash losses resulting from mark-to-market
accounting treatment of metals owned by the Company as of the date of determination and recorded as
assets on the consolidated balance sheet of the Company and its Subsidiaries, (xv) additional cash
and non-cash restructuring expenses (provided that, (A) in the event that the gross
proceeds of the Equity Offering are greater than or equal to $175,000,000, cash restructuring
expenses not to exceed $45,000,000 in the aggregate and (B) in the
event the gross proceeds of the Equity Offering are less than $175,000,000, cash restructuring
expenses not to exceed $35,000,000 in the aggregate), (xvi) non-recurring fees, cash charges and
other cash expenses paid in connection with or related to the preparation, negotiation, approval,
execution and delivery of the amendment and restatement of the Existing Credit Agreement and the
Equity Offering,



11









 







(xvii) all charges and associated expenses in connection with the refinancing,
retirement or extinguishment of any Indebtedness, including initial issuance costs, prepayment
penalties, swap breakage fees and write-off of deferred issuance fees, minus (c) to the
extent added in determining Net Income, the sum of (i) non-cash gains resulting from mark-to-market
accounting treatment of interest rate hedging agreements and (ii) non-cash gains resulting from
mark-to-market accounting treatment of metals owned by the Company as of the date of determination
and recorded as assets on the consolidated balance sheet of the Company and its Subsidiaries.



     “Eligible Assignee” means (a) in the case of an assignment of a Term Loan, any Person
(other than an Ineligible Assignee) and (b) in the case of any assignment of the Original Revolving
Loan Commitment or the Extended Revolving Loan Commitment, as applicable, (i) a Revolving Loan
Lender or (ii) any other Person (other than an Ineligible Assignee) with the consent of the Company
(such consent not to be unreasonably withheld or delayed) unless (A) the assignment is being made
to an Affiliate of a Lender or an Approved Fund, (B) the assignment is being made to such Person by
the Revolving Loan Administrative Agent during the Primary Syndication (in which case the Revolving
Loan Administrative Agent shall consult with the Company prior to any such assignment), or (C) an
Event of Default has occurred and is continuing.



     “EMU” means Economic and Monetary Union as contemplated in the Treaty on European
Union.



     “EMU Legislation” means legislative measures of the European Council (including
without limitation European Council regulations) for the introduction of, changeover to or
operation of a single or unified European currency (whether known as the Euro or otherwise), being
in part the implementation of the third stage of EMU.



     “Environmental Laws” means all applicable federal, state or local statutes, laws,
ordinances, codes, rules, regulations and guidelines (including consent decrees and administrative
orders) relating to public health and safety and protection of the environment.



     “Equity Offering” means an issuance of common stock by the Company for aggregate gross
cash proceeds in an amount not less than $150,000,000.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to sections of ERISA also refer to any successor
sections thereto.



     “ESS” is defined in clause (a) of Section 10.11.



     “Euro” means the single currency of Participating Member States of the European Union.



     “Event of Default” is defined in Section 8.1.



     “Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of (a) EBITDA for
such Fiscal Year less (b) the sum (for such Fiscal Year) of (i) Interest Expense actually
paid in cash by the Company and its Subsidiaries, (ii) scheduled and voluntary principal
repayments, to the extent actually made, of Term Loans pursuant to clause (c) of
Section 3.1.1, (iii) all income Taxes actually paid in cash by the Company and its
Subsidiaries, (iv) Capital Expenditures actually made by the Company and its
Subsidiaries, (v) all Restricted Payments actually made by the Company in such Fiscal Year,
(vi) non-recurring fees, cash charges and other cash expenses paid by the Company and its
Subsidiaries in connection with the preparation, negotiation, approval, execution and delivery of
Amendment No. 4 (including the fees and expenses of the consultant referred to in Section 7.1.14),
(vii) cash restructuring



12









 







costs paid by the Company in such Fiscal Year that were added back in
calculating EBITDA and (viii) non-recurring fees, cash charges and other cash expenses paid in
connection with or related to the preparation, negotiation, approval, execution and delivery of the
amendment and restatement of the Existing Credit Agreement and the Equity Offering.



     “Excluded Property” means the Georgia Property and Niagara Falls Property.



     “Excluded Subsidiary” means any of (a) Ferro Pfanstiehl (Europe) Ltd., a company
organized under the laws of the United Kingdom, (b) Zibo Ferro Performance Materials Company,
Limited, a company organized under the laws of the Peoples Republic of China, (c) Ferro (Suzhou)
Performance Materials Co. Ltd, a company organized under the laws of the Peoples Republic of China,
(c) Ferro Enamel do Brasil Industria e Comercio Ltda., a company organized under the laws of
Brazil, and (d) Ferro Holding GmbH, a company organized under the laws of Germany.



     “Exemption Certificate” is defined in clause (e) of Section 4.6.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Existing Credit Agreement” is defined in the first recital.



     “Existing Lenders” is defined in the first recital.



     “Existing Letters of Credit” means each of the Letters of Credit outstanding under the
Existing Credit Agreement immediately prior to the Second Restatement Effective Date.



     “Extended Revolving Loan Commitment” means, relative to any Lender, such Lender’s
obligation to make Extended Revolving Loans pursuant to clause (b) of Section
2.1.1.



     “Extended Revolving Loan Commitment Period” means the period from and including the
Second Restatement Effective Date to the Extended Revolving Loan Termination Date.



     “Extended Revolving Loan Exposure” means, relative to any Extended Revolving Loan
Lender, at any time, (a) the Dollar Equivalent of the aggregate outstanding principal amount of all
Extended Revolving Loans of such Extended Revolving Lender at such time, plus (b) such Extended
Revolving Lender’s Extended Revolving Loan Percentage of the Dollar Equivalent of the Letter of
Credit Outstandings, plus (c) such Extended Lender’s Revolving Loan Percentage of the aggregate
principal amount outstanding of all Swing Line Loans at such time.



     “Extended Revolving Loan Lender” mean those Revolving Loan Lenders under the Existing
Credit Agreement immediately prior to the Second Restatement Effective Date that execute and
deliver a signature page to the Amendment Agreement specifically in the capacity of an Extended
Revolving Loan Lender.



     “Extended Revolving Loan Commitment Termination Date” means the earliest of:




     (a) the sixth anniversary of the Closing Date;




     (b) the date on which the Extended Revolving Loan Commitment is terminated in full or
reduced to zero pursuant to the terms of this Agreement; and




     (c) the date on which any Commitment Termination Event occurs.



13









 




Upon the occurrence of any event described above, the Extended Revolving Loan Commitments shall
terminate automatically and without any further action.




     “Extended Revolving Loan Percentage” means, relative to any Lender, the applicable
percentage relating to Extended Revolving Loans set forth opposite its name on Schedule II
hereto under the Extended Revolving Loan Commitment column or set forth in a Lender Assignment
Agreement under the Extended Revolving Loan Commitment column, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreements executed by such Lender and its Assignee
Lender and delivered pursuant to Section 10.11. A Lender shall not have any Extended
Revolving Loan Commitment if its percentage under the Extended Revolving Loan Commitment column is
zero.



     “Extended Revolving Loans” means each Revolving Loan made by an Extended Revolving
Loan Lender on or after the Second Restatement Effective Date.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to (a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or (b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such transactions received by the
applicable Administrative Agent from three federal funds brokers of recognized standing selected by
it.



     “Fee Letter” means, collectively, (a) the confidential letter, dated March 24, 2006,
among the Company, National City, CS and Credit Suisse Securities (USA), LLC, and (b) the
confidential letter, dated May 23, 2007, among the Company, National City, CS and Credit Suisse
Securities (USA), LLC, in each case, as amended, supplemented, amended and restated or otherwise
modified from time to time.



     “Ferro Electronic” means Ferro Electronic Materials Inc., a Delaware corporation.



     “Filing Statements” means all Uniform Commercial Code financing statements or other
similar financing statements and Uniform Commercial Code (Form UCC-3) termination statements
required pursuant to the Loan Documents.



     “First Restatement Effective Date” means June 8, 2007.



     “First Restatement Effective Date Certificate” means the certificate executed and
delivered by an Authorized Officer of the Company pursuant to the terms of this Agreement,
substantially in the form of Exhibit K hereto.



     “Fiscal Quarter” means a quarter ending on the last day of March, June, September or
December.



     “Fiscal Year” means any period of twelve consecutive calendar months ending on
December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g.,
the “2007 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such calendar year.



     “Fixed Charge Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of (a) EBITDA (for all such Fiscal Quarters) minus Capital Expenditures
made during such Fiscal Quarters; provided that for purposes of calculating the Fixed
Charge Coverage Ratio, for any Fiscal Quarter ending in the 2007, 2008 and 2009 Fiscal Years, up to
$30,000,000 of Capital Expenditures made in any such Fiscal Year, but not exceeding $45,000,000 of
Capital Expenditures in all such Fiscal Years,



14









 







of which approximately $10,000,000 remains available
as of September 30, 2008, in each case as related to restructuring initiatives, shall be excluded
from such calculations, to (b) the sum (for all such Fiscal Quarters) of (i) Interest
Expense actually paid in cash during such Fiscal Quarters (excluding (A) initial issuance costs
paid in connection with Indebtedness incurred in respect of the Obligations, (B) any make-whole
premium or Interest Expense payable in connection with the prepayment of Indebtedness under the
1998 Indenture, and (C) if applicable, any swap or hedge breakage costs relating to interest rate
swaps or hedges in effect on the Amendment No. 4 Effective Date (including, without limitation, any
such costs incurred in connection with a prepayment of the Term Loans)), (ii) scheduled principal
repayments of Indebtedness (other than Indebtedness issued under the Indentures) actually made
during such Fiscal Quarters (including repayments of the Term Loans pursuant to clause (c)
of Section 3.1.1 (other than the final four scheduled payments of the Term Loans required
pursuant to the last sentence of Section 3.1.1(c); provided that such exception
shall not include amounts equal to 0.25% of the original principal amount of the Original Term
Loans and the New Term Loans that are included in such final four scheduled payments), and
excluding payments of the Term Loans made from the proceeds of the Equity Offering), but
specifically excluding repayments of the Term Loans pursuant to clauses (d), (e), (f) or
(h) of Section 3.1.1, (iii) finance expenses paid in connection with the Permitted
Receivables Program during such Fiscal Quarters, and (iv) Restricted Payments made by the Company
during such Fiscal Quarters; provided, that Restricted Payments made by the Company during
the Fiscal Quarters ending on June 30, 2008, September 30, 2008 and December 31, 2008 shall be
calculated on a pro forma basis as if the amount of each such Restricted Payment equals $221,000
and provided, further, that non-recurring fees, cash charges and other cash
expenses paid in connection with or related to the preparation, negotiation, approval, execution
and delivery of the amendment and restatement of the Existing Credit Agreement and the Equity
Offering shall be excluded from clause (b) above.



     “Foreign Pledge Agreement” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States or a State thereof executed and delivered by
the Company or any of its Subsidiaries pursuant to the terms of this Agreement, in form and
substance satisfactory to the Collateral Agent, as may be necessary or desirable under the laws of
organization or incorporation of a Subsidiary to further protect or perfect the Lien on and
security interest in any Collateral (as defined in the Security Agreement).



     “Foreign Subsidiary” means any Subsidiary that is not a U.S. Subsidiary.



     “Fronting Fee” is defined in clause (b) of Section 3.3.3.



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



     “GAAP” means, with respect to the interpretation of all accounting terms used herein
and in each other Loan Document, the calculation of all accounting determinations and computations
required to be made hereunder or thereunder (including under Section 7.2.4 and in respect
of any defined terms used herein or in any other Loan Document), those U.S. generally accepted
accounting principles applied in the preparation of the audited consolidated financial statements
of the Company for the Fiscal Year ended December 31, 2004.



     “Georgia Property” means the Company’s real property located at Meadow Brook
Industrial Park in Toccoa, Georgia.



     “Governmental Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory



15









 







body, court, central bank or other Person exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Granting Lender” is defined in clause (i) of Section 10.11.



     “Guarantor” means, collectively, the Company and each Subsidiary Guarantor.



     “Hazardous Material” means:




     (a) any “hazardous substance”, as defined by CERCLA;




     (b) any “hazardous waste”, as defined by the Resource Conservation and Recovery Act, as
amended; or




     (c) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or
substance (including any petroleum product) within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including consent decrees
and administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all as amended.



     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under currency exchange agreements, interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, and all other agreements or arrangements designed
to protect such Person against fluctuations in interest rates, currency exchange rates or commodity
prices.



     “herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
Section, paragraph or provision of such Loan Document.



     “Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of the Company:




     (a) which is of a “going concern” or similar nature (other than in connection with the
Company’s 2004 financial statements);




     (b) which relates to the limited scope of examination of matters relevant to such
financial statement; or




     (c) which relates to the treatment or classification of any item in such financial
statement and which, if adjusted in the manner deemed appropriate by the Company’s
independent public accountants, would have the effect of causing the Company to be in
Default.




     (d) The foregoing notwithstanding, it shall not be considered an Impermissible
Qualification for audited financial statements for the 2005 Fiscal Year:




     (i) if the Company receives a disclaimer because the Company’s auditors were
not engaged until after the close of the 2005 Fiscal Year and thus were not involved
during the 2005 Fiscal Year in reviewing the Company’s internal controls and
procedures;



16









 







     (ii) if the Company receives a qualification or disclaimer because the
Company’s auditors were not engaged until after the close of the 2005 Fiscal Year
and thus did not observe the Company’s physical inventory for the 2005 Fiscal Year;
or




     (iii) if the SEC and/or any national securities exchange takes the position,
based on clauses (i) or (ii) above, that as a result of such
qualification or disclaimer, the Company is not in compliance with SEC filing
requirements or the applicable listing standard.



     “including” and “include” means including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



     “Indebtedness” of any Person means:




     (a) all obligations of such Person for borrowed money or advances and all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments;




     (b) all obligations, contingent or otherwise, relative to the face amount of all
letters of credit (other than any letter of credit obligations that are cash
collateralized), whether or not drawn, and banker’s acceptances issued for the account of
such Person;




     (c) all Capitalized Lease Liabilities of such Person;




     (d) for purposes of Section 8.1.5 only, all other items which, in accordance
with GAAP, would be included as liabilities on the balance sheet of such Person as of the
date at which Indebtedness is to be determined;




     (e) net Hedging Obligations of such Person;




     (f) whether or not so included as liabilities in accordance with GAAP, all obligations
of such Person to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of such
Person), and indebtedness secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) a Lien on property owned or being
acquired by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;




     (g) obligations arising under Synthetic Leases;




     (h) the full outstanding balance of trade receivables, notes or other instruments sold
with full recourse (and the portion thereof subject to potential recourse, if sold with
limited
recourse), other than in any such case any thereof sold solely for purposes of
collection of delinquent accounts and other than in connection with any Permitted
Receivables Program;




     (i) all obligations (other than intercompany obligations) of such Person pursuant to
any Permitted Receivables Program;



17









 







     (j) the stated value, or liquidation value if higher, of all Redeemable Stock of such
Person; and




     (k) all Contingent Liabilities of such Person in respect of any of the foregoing.


The Indebtedness of any Person shall include the Indebtedness of any other Person (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 Person, except
to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
Neither trade payables nor other similar accrued expenses, in each case arising in the ordinary
course of business, nor obligations in respect of insurance policies or performance or surety bonds
which themselves are not guarantees of Indebtedness (nor drafts, acceptances or similar instruments
evidencing the same nor obligations in respect of letters of credit supporting the payment of the
same), shall constitute Indebtedness. For the avoidance of doubt and to the extent not previously
excluded from Indebtedness, “take-or-pay” obligations for less than twelve months for inventory
acquired in the ordinary course of business shall not constitute
Indebtedness; provided that such
twelve-month limitation shall not apply to “take-or-pay” obligations with respect to natural gas
acquired in the ordinary course of business. For the avoidance of doubt, on any date, the entire
outstanding principal amount of the Company’s 6.50% Convertible Senior Notes due 2013 on such date
shall constitute Indebtedness of the Company with respect to such date, notwithstanding the
treatment thereof in accordance with GAAP.




     “Indemnified Liabilities” is defined in Section 10.4.



     “Indemnified Parties” is defined in Section 10.4.



     “Indentures” means, collectively, (a) that certain Indenture, dated as of March 25,
1998 (the “1998 Indenture”), among the Company and J. P. Morgan Trust Company,
National Association (successor-in-interest to Chase Manhattan Trust Company, National
Association), as trustee (and any successor trustee(s)), (b) that certain Indenture, dated as of
May 1, 1993, among the Company and J. P. Morgan Trust Company, National Association
(successor-in-interest to Society National Bank), as trustee (and any successor trustee(s)) and (c)
that certain Indenture, dated March 5, 2008 (the “2008 Indenture”), among the Company and
U.S. Bank National Association, as trustee (and any successor trustee(s)), in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Index Debt” means senior, unsecured, long-term debentures or other debt securities of
the Company that are not guaranteed by any other Person or subject to any other credit support or
enhancement.



     “Index Debt Rating” means, as of any date of determination, the rating of the
Company’s Index Debt, as given by the Rating Agencies in their regular rating reports.



     “Ineligible Assignee” means a natural Person, the Company, any Affiliate of the
Company or any other Person taking direction from, or working in concert with, the Company or any
of the Company’s Affiliates.



     “Interest Expense” means, for any applicable period, the aggregate interest expense
(both accrued and paid and net of interest income paid during such period to the Company and its
Subsidiaries) of the Company and its Subsidiaries for such applicable period, including the portion
of any payments made in respect of Capitalized Lease Liabilities allocable to interest expense.



18









 





     “Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Sections 2.3 or 2.4 and shall end on (but exclude) the day
which numerically corresponds to such date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such month), as the
applicable Borrower may select in its relevant notice pursuant to Sections 2.3 or
2.4; provided that:




     (a) the Borrowers shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than ten different dates;




     (b) if such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such numerically corresponding
day);




     (c) no Interest Period for any Loan may end later than the Stated Maturity Date for
such Loan; and




     (d) for each Specified Term Loan Tranche, from and after June 25, 2007, each applicable
Interest Period for LIBO Rate Loans shall be limited to three months, each of which shall
end on the last Business Day of the applicable Fiscal Quarter (for avoidance of doubt, the
Company may specify termination dates for Rate Protection Agreements that correspond to
Interest Periods for the Specified Term Loan Tranches).




     “Investment” means, relative to any Person,




     (a) any loan, advance or extension of credit made by such Person to any other Person,
including the purchase by such Person of any bonds, notes, debentures or other debt
securities of any other Person;




     (b) Contingent Liabilities in favor of any other Person; and




     (c) any Capital Securities held by such Person in any other Person.


The amount of any Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or capital amount equal to
the fair market value of such property at the time of such Investment.




     “ISP Rules” is defined in Section 10.9.



     “Issuance Request” means a Letter of Credit request and certificate duly executed by
an Authorized Officer of a Borrower, substantially in the form of Exhibit B-2 hereto.



     “Issuer” means National City, in its capacity as Issuer of the Letters of Credit, and
its successors and assigns. At the request of National City (or its successors or assigns), and
with the Company’s
consent (not to be unreasonably withheld), another Lender or an Affiliate of National City (or
its successors or assigns) may issue one or more Letters of Credit hereunder and shall be deemed to
be an Issuer.



     “Judgment Currency” is defined in Section 10.16.



19









 





     “LC Trigger Date” means the date that is one year prior to the Original Revolving
Commitment Termination Date.



     “Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit D hereto.



     “Lenders” is defined in the preamble.



     “Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or prosecuting any
litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against either Administrative Agent, any Lender or any Issuer or any of such Person’s
Affiliates, shareholders, directors, officers, employees, and agents in connection with or arising
from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of any
property of the Company or any of its Subsidiaries, the groundwater thereunder, or any
surrounding areas thereof to the extent caused by Releases from the Company’s or any of its
Subsidiaries’ or any of their respective predecessors’ properties;




     (b) any misrepresentation, inaccuracy or breach of any warranty, contained or referred
to in Section 6.12;




     (c) any violation or claim of violation by the Company or any of its Subsidiaries of
any Environmental Laws; or




     (d) the imposition of any lien for damages caused by or the recovery of any costs for
the cleanup, release or threatened release of Hazardous Material by the Company or any of
its Subsidiaries, or in connection with any property owned or formerly owned by the Company
or any of its Subsidiaries.



     “Letter of Credit” is defined in Section 2.1.2.



     “Letter of Credit Commitment” means the relevant Issuer’s obligation to issue Letters
of Credit pursuant to Section 2.1.2.



     “Letter of Credit Commitment Amount” means, on any date, a maximum amount equal to the
Dollar Equivalent of $120,000,000, as such amount may be permanently reduced from time to time
pursuant to Section 2.2.



     “Letter of Credit Outstandings” means, on any date, an amount equal to the sum of (a)
the then aggregate amount which is undrawn and available under all issued and outstanding Letters
of Credit and (b) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.



     “Leverage Ratio” means, on any date of determination, the ratio of (a) Total Debt
outstanding on such date to (b) EBITDA computed for the period of four consecutive Fiscal Quarters
most recently ended on or prior to such date; provided that, for purposes of calculating the
Leverage Ratio for any date on which Indebtedness is outstanding under each of the 1998 Indenture
and the 2008 Indenture, the aggregate amount of Indebtedness thereunder to be included in the
calculation of Total Debt for such date



20









 







shall be the amount equal to the greater of (i) the amount
of Indebtedness outstanding under the 1998 Indenture and (ii) the amount of Indebtedness
outstanding under the 2008 Indenture, in each case calculated as of such date.



     “LIBO Alternate Rate” means, with respect to any Loan that is denominated in an
Alternate Currency, relative to an interest period of one month, that rate of interest determined
by the Revolving Loan Administrative Agent by reference to the cost to the Revolving Loan
Administrative Agent of obtaining deposits of such Currency from such sources as it may reasonably
select. The Revolving Loan Administrative Agent shall determine the LIBO Alternate Rate for each
such interest period (which determination shall be conclusive in the absence of manifest error),
and will promptly give notice to the Company and the Lenders thereof.



     “LIBO Rate” means, relative to any Interest Period:




(a) for LIBO Rate Loans denominated in Dollars, the rate of interest per annum determined by
the applicable Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the rate which appears on the
Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays at rates
which Dollar deposits are offered by leading banks in the London interbank deposit market),
or the rate which is quoted by another source selected by the applicable Administrative
Agent which has been approved by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying rates at which Dollar deposits are offered
by leading banks in the London interbank deposit market (an “Alternate Source”) at
approximately 11:00 a.m. London, England time, two (2) Business Days prior to the
commencement of such Interest Period as the London interbank offered rate for Dollars for an
amount comparable to the Borrowing relating to such Interest Period and having a borrowing
date and a maturity comparable to such Interest Period (or if there shall at any time, for
any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate
Source, a comparable replacement rate determined by the applicable Administrative Agent at
such time (which determination shall be conclusive absent manifest error)); and




(b) for LIBO Rate Loans denominated in an Alternate Currency, the rate of interest per annum
determined by the Revolving Loan Administrative Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to the average of
the London interbank offered rate of interest per annum for deposits in the relevant
Alternate Currency which appears on the relevant Bloomberg page that displays such rates
(or, if no such quotation is available on such Bloomberg page, the rate which is quoted by
another source for the London interbank offered rates of interest for deposits in the
relevant Alternate Currency selected by the Revolving Loan Administrative Agent), at
approximately 9:00 a.m., New York time, two (2) Business Days prior to the commencement of
such Interest Period for an amount comparable to the Borrowing relating to such Interest
Period and having a borrowing date and a maturity comparable to such Interest Period.



     “LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve
Adjusted).



     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period:



21









 






     (a) if denominated in Dollars or Euros, a rate per annum determined pursuant to the
following formula:



	 	 	 	 	 
	LIBO Rate
	 	=
	 	LIBO Rate
	 
	 	 	 	 
	(Reserve Adjusted)
	 	 	 	1.00 — LIBOR Reserve Percentage







     (b) if denominated in Yen, the relevant LIBO Rate or LIBO Alternate Rate, as the case
may be, plus any applicable reserve or other funding costs incurred by the Lenders in making
such Loan.


The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the applicable Administrative Agent on the basis of the LIBOR Reserve Percentage in effect, and the
applicable rates furnished to and received by such Administrative Agent, two Business Days before
the first day of such Interest Period. The LIBO Rate (Reserve Adjusted) shall be adjusted with
respect to any LIBO Rate Loan that is outstanding on the effective date of any change in the LIBOR
Reserve Percentage as of such effective date. The applicable Administrative Agent shall give
prompt written notice to the Borrowers of the LIBO Rate (Reserve Adjusted) as adjusted in
accordance herewith, which determination shall be conclusive absent manifest error.




     “LIBOR Office” means the office of a Lender designated as its “LIBOR Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office designated
from time to time by notice from such Lender to the Company and the Administrative Agents, whether
or not outside the United States, which shall be making or maintaining the LIBO Rate Loans of such
Lender.



     “LIBOR Reserve Percentage” means, as of any day, the maximum percentage in effect on
such day, as prescribed by the F.R.S Board for determining the reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) with respect to
eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).



     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever.



     “Loan Documents” means, collectively, this Agreement, the Notes, the Letters of
Credit, the Fee Letter, the Collateral Sharing Agreement, each agreement pursuant to which the
Collateral Agent is granted a Lien to secure the Obligations, each Subsidiary Guaranty and each
other agreement, certificate, document or instrument delivered in connection with any Loan
Document, whether or not specifically mentioned herein or therein.



     “Loans” means, as the context may require, a Revolving Loan, an Alternate Currency
Loan, a Term Loan or a Swing Line Loan of any type.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, properties or, until the Closing Date,
prospects of the Company or the Company and its Subsidiaries taken as a whole, (b) the rights and
remedies of any Secured Party under any Loan Document or (c) the ability of any Obligor to perform
its Obligations under any Loan Document.



     “Material Debt” means the Indebtedness of the Company and its Subsidiaries under the
Permitted Receivables Program and the Indentures.



22









 





     “Material Debt Documents” means collectively, the loan agreements, indentures, note
purchase agreements, promissory notes, guarantees, and other instruments and agreements evidencing
the terms of any Material Debt, each as amended, supplemented, amended and restated or otherwise
modified in accordance with Section 7.2.9.



     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “Mortgage” means each mortgage, deed of trust, leasehold mortgage, leasehold deed of
trust or other agreement executed and delivered by any Obligor in favor of the Collateral Agent for
the benefit of the Secured Parties pursuant to the requirements of this Agreement, in form and
substance reasonably satisfactory to the Collateral Agent, under which a valid, perfected, first
priority Lien is granted on the real property and fixtures, or leasehold estate (if applicable),
described therein, in each case as amended, supplemented, amended and restated or otherwise
modified from time to time.



     “National City” is defined in the preamble.



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
insurance proceeds or condemnation awards received by the Company or any of its Subsidiaries in
connection with such Casualty Event in excess of $2,500,000, individually or in the aggregate over
the course of a Fiscal Year (net of all reasonable and customary collection expenses thereof), but
excluding any proceeds or awards required to be paid to a creditor (other than the Lenders) which
holds a first priority Lien permitted by clause (d) of Section 7.2.3 on the
property which is the subject of such Casualty Event.



     “Net Debt Proceeds” means, with respect to the sale or issuance by the Company or any
of its Subsidiaries of any Indebtedness to any other Person after the Closing Date which is not
expressly permitted by Section 7.2.2, the excess of (a) the gross cash proceeds actually
received by such Person from such sale or issuance, over (b) all customary arranging or
underwriting discounts, fees and commissions, and all legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and disbursements and other customary
closing costs and expenses actually incurred in connection with such sale or issuance other than
any such fees, discounts, commissions or disbursements paid to Affiliates of the Company or any
such Subsidiary in connection therewith.



     “Net Disposition Proceeds” means, with respect to any Disposition by the Company, its
U.S. Subsidiaries or any Subsidiary Guarantor pursuant to clauses (c), (f) and
(h) of Section 7.2.8 and any cash payment received in respect of promissory notes
or other non-cash consideration delivered to the Company or such Subsidiary in respect thereof, the
excess of (a) the gross cash proceeds received by the Company or such Subsidiary over (b) the sum
of (i) all reasonable and customary legal, investment banking, brokerage and accounting fees and
expenses incurred in connection with such Disposition, (ii) all taxes actually paid or accrued by
the Company to be payable in cash in connection with such Disposition, (iii) payments made by the
Company or such Subsidiary to retire Indebtedness (other than the Credit Extensions) where payment
of such Indebtedness is required in connection with such Disposition; provided that if the amount
of any accrued taxes pursuant to clause (ii) exceeds the amount
of taxes actually required to be paid in cash in respect of such Disposition, the aggregate
amount of such excess shall constitute Net Disposition Proceeds and (iv) in the case of any
Specified Disposition, any amounts paid in connection with any Specified Acquisition being
consummated substantially simultaneously therewith.



     “Net Equity Proceeds” means, with respect to the sale or issuance after the Closing
Date by the Company to any Person of any of its Capital Securities, warrants or options or the
exercise of any such warrants or options, the excess of (a) the gross cash proceeds
received by the Company from such sale, exercise or issuance, over (b) all reasonable and
customary underwriting commissions and legal,




23












 




investment banking, brokerage and accounting and
other professional fees, sales commissions and disbursements actually incurred in connection with
such sale or issuance which have not been paid to Affiliates of the Company in connection
therewith, together with, in the case of the Equity Offering only, reasonable fees and expenses
actually incurred in connection with the amendment and restatement of this Agreement (including
fees and expenses of consultants to the Company and the Administrative Agents in connection
therewith) which have not been paid to Affiliates of the Company in
connection therewith; provided
that proceeds resulting from sales or issuances of options or the exercise of such options up to
$10,000,000 in the aggregate in any Fiscal Year shall not constitute Net Equity Proceeds.




     “Net Income” means, for any period, the aggregate of all amounts (exclusive of all
amounts in respect of (a) extraordinary gains and losses, (b) whether or not extraordinary, gains
and losses on asset sales and (c) whether or not extraordinary, gains and losses resulting from the
extinguishment of Indebtedness of the Company or any of its Subsidiaries) which would be included
as net income on the consolidated financial statements of the Company and its Subsidiaries for such
period.



     “New Term Loan” means each Original Revolving Loan that is converted into a New Term
Loan on the Second Restatement Effective Date.



     “New Term Loan Lender” means those Lenders under the Existing Credit Agreement
immediately prior to the Second Restatement Effective Date that execute and deliver a signature
page to the Amendment Agreement specifically in the capacity of a New Term Loan Lender.



     “New Term Loan Percentage” means, relative to any Lender, the applicable percentage
relating to New Term Loans set forth opposite its name on Schedule II hereto under the New
Term Loan column or set forth in a Lender Assignment Agreement under the New Term Loan column, as
such percentage may be adjusted from time to time pursuant to Lender Assignment Agreements executed
by such Lender and its Assignee Lender and delivered pursuant to Section 10.11.



     “Niagara Falls Property” means the Company’s real property located at 4511 Hyde Park
Blvd., Niagara Falls, NY.



     “Non-Excluded Taxes” means any Taxes other than net income and franchise Taxes imposed
with respect to any Secured Party by any Governmental Authority under the laws of which such
Secured Party is organized or in which it maintains its applicable lending office.



     “Non-U.S. Lender” means any Lender that is not a “United States person”, as defined
under Section 7701(a)(30) of the Code.



     “Note” means, as the context may require, a Revolving Note, a Term Note or a Swing
Line Note.



     “Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrowers and each other Obligor arising under or in
connection with a Loan Document, including Reimbursement Obligations and the principal of and premium, if any,
and interest (including interest accruing during the pendency of any proceeding of the type
described in Section 8.1.9, whether or not allowed in such proceeding) on the Loans;
provided that for purposes of this definition, when the term “Obligations” is used in any
agreement relating to Liens securing the Obligations (including the Collateral Sharing Agreement),
the Subsidiary Guaranty (Domestic) and Section 4.11, “Loan Document” shall include each
Rate Protection Agreement.



     “Obligor” means, as the context may require, the Borrowers and each other Person
(other than a Secured Party) obligated under any Loan Document.



24









 





     “Organic Document” means, relative to any Obligor, as applicable, its articles or
certificate of incorporation, regulations, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement, operating agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any of such Obligor’s
Capital Securities.



     “Original Currency” is defined in Section 10.16.



     “Original Credit Agreement” means that certain Credit and Guaranty Agreement dated as
of June 6, 2006 by and among the Company, the Borrowers, the Lenders party thereto from time to
time, the Administrative Agents, the Collateral Agents and the other agents party thereto, as it
may have been amended or otherwise modified from time to time.



     “Original Loans” is defined in the first recital.



     “Original Revolving Loan Commitment” means, relative to any Lender, such Lender’s
obligation (if any) to make Revolving Loans pursuant to clause (a) of Section
2.1.1.



     “Original Revolving Loan Commitment Amount” means, (a) prior to the First Restatement
Effective Date, $250,000,000, (b) on the First Restatement Effective Date and until the Second
Restatement Effective Date, $300,000,000 and (c) on the Second Restatement Effective Date, $0, as
such amount may be reduced from time to time pursuant to Section 2.2.



     “Original Revolving Loan Commitment Termination Date” means the earliest of




     (a) the fifth anniversary of the Closing Date;




     (b) the date on which the Original Revolving Loan Commitment is terminated in full or
reduced to zero pursuant to the terms of this Agreement; and




     (c) the date on which any Commitment Termination Event occurs.


Upon the occurrence of any event described above, the Original Revolving Loan Commitments shall
terminate automatically and without any further action.




     “Original Revolving Loan Exposure” means, relative to any Original Revolving Loan
Lender, at any time, (a) the Dollar Equivalent of the aggregate outstanding principal amount of all
Original Revolving Loans of such Original Revolving Lender at such
time, plus (b) such Original
Revolving Lender’s Original Revolving Loan Percentage of the Dollar Equivalent of the Letter of Credit
Outstandings.



     “Original Revolving Loan Lender” means each Revolving Loan Lender immediately prior to
the Second Restatement Effective Date.



     “Original Revolving Loan Percentage” means, relative to any Lender, the applicable
percentage relating to Original Revolving Loans set forth opposite its name on Schedule II
hereto under the Original Revolving Loan Commitment column or set forth in a Lender Assignment
Agreement under the Original Revolving Loan Commitment column, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreements executed by such Lender and its Assignee
Lender and delivered pursuant to Section 10.11. A Lender shall not have any Original
Revolving Loan Commitment if its percentage under the Original Revolving Loan Commitment column is
zero.



25









 





     “Original Revolving Loans” is defined in the first recital.



     “Original Term Loan Lender” means each Term Loan Lender immediately prior to the
Second Restatement Effective Date.



     “Original Term Loan Percentage” means, relative to any Lender, the applicable
percentage relating to Original Term Loans set forth opposite its name on Schedule II
hereto under the Original Term Loan column or set forth in a Lender Assignment Agreement under the
Original Term Loan column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its Assignee Lender and delivered pursuant to
Section 10.11.



     “Original Term Loans” is defined in the first recital.



     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any other
excise or property Taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.



     “Participant” is defined in clause (d) of Section 10.11.



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



     “Patent Security Agreement” means any Patent Security Agreement executed and delivered
by any Obligor in substantially the form of Exhibit A to the Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), as amended and supplemented from time to time.



     “Patriot Act Disclosures” means all documentation and other information which a
Lender, if subject to the Patriot Act, is required to provide pursuant to the applicable section of
the Patriot Act and which required documentation and information the Administrative Agents
reasonably request in order to comply with their ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Patriot Act.



     “PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all of its functions under ERISA.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the Company or any corporation, trade or business that is, along
with the Company, a member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any
time during the preceding five years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.



     “Percentage” means, as the context may require, any Lender’s Original Revolving Loan
Percentage, Extended Revolving Loan Percentage, Original Term Loan Percentage or New Term Loan
Percentage.



26









 





     “Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
Capital Securities, assets or otherwise) by the Company or any of its Subsidiaries from any Person
of a business in which the following conditions are satisfied:




     (a) the SEC Filing Date has occurred;




     (b) immediately before and after giving effect to such acquisition no Default shall
have occurred and be continuing or would result therefrom (including under Section
7.1.8 and Section 7.2.1);




     (c) the Company shall have delivered a certificate certifying that before and after
giving effect to such acquisition, the representations and warranties set forth in each Loan
Document shall, in each case, be true and correct in all material respects with the same
effect as if then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in all material respects as of
such earlier date) and no Default has occurred and is continuing; and




     (d) the Company shall have delivered to the Administrative Agents a Compliance
Certificate for the period of four full Fiscal Quarters immediately preceding such
acquisition (prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to Section
7.1.1) giving pro forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Section 7.2.4,
such pro  forma adjustments
being reasonably satisfactory to the Administrative Agents.



     “Permitted Receivables Program” means a receivables program providing for the
Disposition by the Company or any of its Subsidiaries of trade receivables and related collateral,
credit support and similar rights, to a Person who is not a Subsidiary of the Company or is an SPV;
provided that:




     (a) the consideration to be received by the Company and its Subsidiaries for any such
Disposition consists of cash, contributions to capital, a deferred purchase price evidenced
by a deferred purchase price note or, with respect to Dispositions to an SPV, a credit
against any interest and/or principal amounts outstanding owed by the Company or any such
Subsidiary to such SPV; and




     (b) the aggregate outstanding balance of the Indebtedness in respect of all such
programs at any point in time is not in excess of $200,000,000.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



     “Platform” is defined in clause (b) of Section 9.10.



     “Pledge and Security Agreement” means the Pledge and Security Agreement, dated as of
the Closing Date, executed and delivered by the Company and each U.S. Subsidiary, a conformed copy
of which is attached as Exhibit G hereto, together with any supplemental Foreign Pledge
Agreements delivered pursuant to the terms of this Agreement, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.



     “PNC Bank” is defined in the preamble.



27









 





     “Primary Syndication” means the period commencing on or prior to the First Amendment
Effective Date and ending on the earlier of (a) the date that is 90 days following the First
Restatement Effective Date and (b) the date that the Administrative Agents have declared the
primary syndication of the Commitments and Credit Extensions to have ended.



     “Prior GAAP Financials” is defined in Section 1.4.



     “Proceeds Reduction Percentage” means, at any time of determination, (a) with respect
to a mandatory prepayment in respect of Net Equity Proceeds pursuant to clause (d) of
Section 3.1.1, (i) 80%, if the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Company to the Administrative Agents was greater than or equal to
3.50:1.00 and (ii) 50%, if the Leverage Ratio set forth in such Compliance Certificate was less
than 3.50: 1.00; and (b) with respect to a mandatory prepayment in respect of Excess Cash Flow
pursuant to clause (h) of Section 3.1.1, (i) 75%, if the Leverage Ratio set forth
in the Compliance Certificate most recently delivered by the Company to the Administrative Agents
was greater than or equal to 4.00:1.00, (ii) 50%, if the Leverage Ratio set forth in such
Compliance Certificate is less than 4.00:1.00 and greater than or equal to 3.50:1.00 and (iii) 0%
if the Leverage Ratio set forth in such Compliance Certificate is less than 3.50:1.00.



     “Published Rate” shall mean the rate of interest published each Business Day in The
Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a
one month period (or, if no such rate is published therein for any reason, then the Published Rate
shall be the eurodollar rate for a one month period as published in another publication determined
by applicable Administrative Agent).



     “Quarterly Payment Date” means the first day of January, April, July and October, or,
if any such day is not a Business Day, the next succeeding Business Day.



     “Rate Protection Agreement” means, collectively, any agreement with respect to Hedging
Obligations entered into by the Company or any Subsidiary under which the counterparty of such
agreement is (or at the time such agreement was entered into, was) a Lender or an Affiliate of a
Lender.



     “Rating Agency” means, as applicable, S&P or Moody’s.



     “Redeemable Stock” means with respect to any Person any Capital Securities of such
Person that (a) is by its terms subject to mandatory redemption, in whole or in part, pursuant to a
sinking fund, scheduled redemption or similar provisions, at any time prior to the Stated Maturity
Date for Term Loans;



     or (b) otherwise is required to be repurchased or retired on a scheduled date or dates, upon
the occurrence of any event or circumstance, at the option of the holder or holders thereof, or
otherwise, at any time prior to the Stated Maturity Date for Term Loans, other than any such
repurchase or retirement occasioned by a “change of
control” or similar event; provided that
Redeemable Stock shall not include the Series A ESOP Convertible Preferred Stock of the Company.



     “Refunded Swing Line Loans” is defined in clause (c) of Section 2.3.2.



     “Register” and “Registers” are defined in clause (a) of Section
2.8.



     “Reimbursement Obligation” is defined in Section 2.7.3.



     “Release” means a “release”, as such term is defined in CERCLA.



28









 





     “Replacement Lender” is defined in Section 4.10.



     “Replacement Notice” is defined in Section 4.10.



     “Required Lenders” means, at any time, Lenders holding more than 50% of the Total
Exposure Amount.



     “Required Revolving Lenders” means, at any time, Revolving Loan Lenders holding more
than 50% of the Total Revolving Loan Exposure Amount.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restricted Payment” means (a) the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities of the Company or any Subsidiary) on, or the making
of any payment or distribution on account of, or setting apart assets for a sinking or other
analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of, any
class of Capital Securities of the Company or any Subsidiary or any warrants, options or other
right or obligation to purchase or acquire any such Capital Securities, whether now or hereafter
outstanding, or (b) the making of any other distribution in respect of such Capital Securities, in
each case either directly or indirectly, whether in cash, property or obligations of the Company or
any Subsidiary or otherwise.



     “Revaluation Date” means, with respect to any Credit Extension denominated in an
Alternate Currency, each of the following: (a) in connection with the origination of any new
Credit Extension, the Business Day which is the earliest of the date such credit is extended or the
date the applicable rate is set; (b) in connection with any extension or conversion or continuation
of an existing Loan, the Business Day that is the earlier of the date such Loan is extended,
converted or continued, or the date the applicable rate is set; (c) each date a Letter of Credit is
issued or renewed pursuant to Section 2.1.2 or amended in such a way as to modify the
Letter of Credit Outstandings; (d) the date of any reduction of any of the Revolving Commitment
Amount, the Alternate Currency Commitment Amount or the Letter of Credit Commitment Amount pursuant
to the terms of Section 2.2; and (e) such additional dates as the Revolving Loan
Administrative Agent shall deem necessary. For purposes of determining availability hereunder, the
rate of exchange for any Alternate Currency shall be the Spot Rate.



     “Revolving Exposure” means, relative to any Revolving Loan Lender, at any time, (a)
the Dollar Equivalent of the aggregate outstanding principal amount of all Revolving Loans of such
Lender at such time, plus (b) such Lender’s Revolving Loan Percentage of the Dollar Equivalent of
the Letter of Credit Outstandings, plus (c) such Lender’s Revolving Loan Percentage of the aggregate principal
amount outstanding of all Swing Line Loans at such time.



     “Revolving Loan Administrative Agent” is defined in the preamble.



     “Revolving Loan Commitment” means, any Original Revolving Loan Commitment and any
Extended Revolving Loan Commitment, collectively.



     “Revolving Loan Commitment Amount” means, the Original Revolving Loan Commitment
Amount and the Extended Revolving Loan Commitment Amount, collectively.



     “Revolving Loan Lender” means, at any time, any Lender that holds a Revolving Loan
Commitment at such time.



29









 





     “Revolving Loan Percentage” means Original Revolving Loan Percentage and/or Extended
Revolving Loan Percentage, as the context requires.



     “Revolving Loans” means Original Revolving Loans and Extended Revolving Loans,
collectively.



     “Revolving Note” means a promissory note of the Borrowers payable to any Revolving
Loan Lender, substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as
applicable (as such promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrowers to such Revolving Loan Lender
resulting from outstanding Original Revolving Loans or Extended Revolving Loans, as applicable, and
also means all other promissory notes accepted from time to time in substitution therefor or
renewal thereof.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. and its successors.



     “SEC” means the Securities and Exchange Commission.



     “SEC Filing Date” means the last date on which the Company files any of its Form 10-Ks
and Form 10-Qs for the 2004 and 2005 Fiscal Years and its Form 10-Qs for the 2006 Fiscal Year.



     “Second Restatement Effective Date” means the date this Agreement becomes effective
pursuant to the terms of the Amendment Agreement.



     “Second Restatement Effective Date Certificate” means the certificate executed and
delivered by an Authorized Officer of the Company pursuant to the terms of this Agreement,
substantially in the form of Exhibit K hereto.



     “Secured Parties” means, collectively, the Lenders, the Issuers, the Agents, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate Protection Agreement
was entered into, was) a Lender or an Affiliate thereof, each Person to whom an Obligor owes a
Secured Obligation (as defined in any Loan Document) and (in each case), each of their respective
successors, transferees and assigns.



     “Securities Account” means a “securities account” as that term is defined in Section
9-102(a) of the UCC.



     “Solvent” means, with respect to any Person and its Subsidiaries on a particular date,
that on such date (a) the fair value of the property of such Person and its Subsidiaries on a
consolidated basis is greater than the total amount of liabilities, including contingent
liabilities, of such Person and its Subsidiaries on a consolidated basis, (b) the present fair
salable value of the assets of such Person and its Subsidiaries on a consolidated basis is not less
than the amount that will be required to pay the probable liability of such Person and its
Subsidiaries on a consolidated basis on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it or its Subsidiaries will, incur debts or
liabilities beyond the ability of such Person and its Subsidiaries to pay as such debts and
liabilities mature, and (d) such Person and its Subsidiaries on a consolidated basis is not engaged
in business or a transaction, and such Person and its Subsidiaries on a consolidated basis is not
about to engage in a business or a transaction, for which the property of such Person and its
Subsidiaries on a consolidated basis would constitute an unreasonably small capital. The amount of
Contingent Liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at such time, can reasonably be expected to become an actual or matured
liability.



30









 





     “SPC” is defined in clause (g) of Section 10.11.



     “Specified Acquisitions” means the acquisitions set forth in the letter from the
Company to the Agents dated on or prior to the Second Restatement Effective Date.



     “Specified Dispositions” means the Dispositions set forth in the letter from the
Company to the Agents dated on or prior to the Second Restatement Effective Date.



     “Specified Term Loan Tranches” means those certain three (3) tranches of Original Term
Loans (i.e., the $95,000,000 tranche, the $25,000,000 tranche and the $55,000,000 tranche) that, as
of the First Restatement Effective Date, the Company maintains as LIBO Rate Loans with maturities
of June 25, 2007.



     “Spot Rate” means the rate determined by the Revolving Loan Administrative Agent to be
the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such
Person of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. (in the applicable time zone) on the date two Business Days prior to
the date as of which the foreign exchange computation is made;
provided that the Revolving Loan
Administrative Agent may obtain such spot rate from another financial institution designated by
such Administrative Agent if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.



     “SPV” means Ferro Finance Corporation, an Ohio corporation, and any other Person that
is a Subsidiary of the Company that is a special purpose entity, variable interest entity or other
bankruptcy remote entity created for the purpose of facilitating a Permitted Receivables Program.



     “Stated Amount” means, on any date and with respect to a particular Letter of Credit,
the total amount then available to be drawn under such Letter of Credit.



     “Stated Expiry Date” is defined in Section 2.7.



     “Stated Maturity Date” means (a) with respect to all Term Loans, all Extended
Revolving Loans, all Swing Line Loans and all Alternate Currency Loans issued in respect of
Extended Revolving Loan Commitments, the sixth anniversary of the Closing Date and (b) with respect
to all Original Revolving Loans and Alternate Currency Loans issued in respect of Original
Revolving Loan Commitments, the fifth anniversary of the Closing Date.



     “Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term “Subsidiary” shall be a reference to a Subsidiary of the Company.



     “Subsidiary Guarantor” means each Subsidiary that has executed and delivered to the
Administrative Agents a Subsidiary Guaranty (including by means of a delivery of a supplement
thereto).



     “Subsidiary Guaranty” means, as applicable, the Subsidiary Guaranty (Domestic) or a
Subsidiary Guaranty (Foreign).



31









 





     “Subsidiary Guaranty (Domestic)” means the subsidiary guaranty, dated as of the
Closing Date, executed and delivered by an Authorized Officer of each Subsidiary required to
execute it or become a party to it pursuant to the terms of the Existing Credit Agreement, a
conformed copy of which is attached as Exhibit F hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.



     “Subsidiary Guaranty (Foreign)” means each subsidiary guaranty executed and delivered
by an Authorized Officer of each Subsidiary of a Designated Borrower guaranteeing the Obligations
of such Designated Borrower, in form and substance reasonably satisfactory to the Administrative
Agents, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “Swing Line Lender” means, subject to the terms of this Agreement, National City and
its successors and assigns.



     “Swing Line Loan” is defined in clause (c) of Section 2.1.1.



     “Swing Line Loan Commitment” is defined in clause (c) of Section
2.1.1.



     “Swing Line Loan Commitment Amount” means, on any date, $20,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Swing Line Note” means a promissory note of the Borrowers payable to the Swing Line
Lender, in the form of Exhibit A-5 hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to
the Swing Line Lender resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal thereof.



     “Syndication Agent” is defined in the preamble.



     “Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a)
that is not a capital lease in accordance with GAAP and (b) in respect of which the lessee retains
or obtains ownership of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.



     “Term Loan Administrative Agent” is defined in the preamble.



     “Term Loan Facility” means, at any time, the aggregate principal amount of the Term
Loans of all Term Loan Lenders outstanding.



     “Term Loan Lender” means, at any time, any Lender that holds Term Loans at such time.



     “Term Loans” means (a) loans made by the Term Loan Lenders under the Term Loan
Facility pursuant to clause (a) of Section 2.1.3 and (b) New Term Loans.



     “Term Note” means a promissory note of the Borrowers payable to any Term Loan Lender,
substantially in the form of Exhibit A-3 or Exhibit A-4 hereto, as applicable (as
such promissory note



32









 




may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrowers to such Term Loan Lender resulting from outstanding
Original Term Loans or New Term Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.




     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized), all Rate
Protection Agreements have been terminated and all Commitments shall have terminated.



     “Total Debt” means, on any date, the outstanding principal amount of all Indebtedness
of the Company and its Subsidiaries of the type referred to in clause (a) (which, in the
case of the Loans, shall be deemed to equal the Dollar Equivalent (determined as of the most recent
Revaluation Date) for any Loans denominated in an Alternate Currency, clause (b) (which, in
the case of Letter of Credit Outstandings, shall be deemed to equal the Dollar Equivalent
(determined as of the most recent Revaluation Date) for any Letter of Credit Outstandings
denominated in an Alternate currency, clause (c), clause (g), clause (i)
and clause (j), in each case of the definition of “Indebtedness” (exclusive of intercompany
Indebtedness between the Company and its Subsidiaries) and any Contingent Liability in respect of
any of the foregoing.



     “Total Exposure Amount” means, on any date of determination (and without duplication),
the Dollar Equivalent (determined as of the most recent Revaluation Date) of the outstanding
principal amount of all Loans, the aggregate amount of all Letter of Credit Outstandings and the
unfunded amount of the Commitments.



     “Total Revolving Loan Exposure Amount” means, on any date of determination (and
without duplication), the Dollar Equivalent (determined as of the most recent Revaluation Date) of
the outstanding principal amount of all Revolving Loans, the aggregate amount of all Letter of
Credit Outstandings and the unfunded amount of the Revolving Loan Commitments.



     “Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor substantially in the form of Exhibit B to the Pledge and Security
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “Transaction” is defined in the second recital.



     “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht, the Kingdom
of Netherlands, on February 1, 1992 and came into force on November 1, 1993), as amended from time
to time.



     “type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan, a LIBO Rate Loan or a Daily LIBO Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York; provided that if, with respect to any Filing Statement or by reason of any provisions of
law, the perfection or the effect of perfection or non-perfection of the security interests granted
to the Collateral Agent pursuant to the applicable Loan Document is governed by the Uniform
Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC”
means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions of each Loan Document and any Filing Statement relating to such
perfection or effect of perfection or non-perfection.



33









 





     “United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



     “U.S. Subsidiary” means any Subsidiary that is incorporated or organized under the
laws of the United States, a state thereof or the District of Columbia.



     “Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.



     “Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1)
of ERISA.



     “wholly owned Subsidiary” means any Subsidiary all of the outstanding Capital
Securities of which (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws) is owned directly or indirectly by the Company.



     “Yen” means Japanese yen, the lawful currency of Japan.



     SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.



     SECTION 1.3 Cross-References. Unless otherwise specified, references in a Loan Document to any Article or Section are
references to such Article or Section of such Loan Document, and references in any Article, Section
or definition to any clause are references to such clause of such Article, Section or definition.



     SECTION 1.4 Accounting and Financial Determinations.




     (a) Unless otherwise specified, all accounting terms used in each Loan Document shall
be interpreted, and all accounting determinations and computations thereunder (including
under Section 7.2.4 and the definitions used in such calculations) shall be made, in
accordance with GAAP. Unless otherwise expressly provided, all financial covenants and
defined financial terms shall be computed on a consolidated basis for the Company and its
Subsidiaries, in each case without duplication.




     (b) As of any date of determination, for purposes of determining the Fixed Charge
Coverage Ratio, Leverage Ratio (and any financial calculations required to be made or
included within such ratios or definition, or required for purposes of preparing any
Compliance Certificate to be delivered pursuant to the definition of “Permitted
Acquisition”), the calculation of such ratios and other financial calculations shall include
or exclude, as the case may be, the effect of any assets or businesses that have been
acquired or Disposed of (but only if (i) the Net Disposition Proceeds resulting from such
Disposition are more than $5,000,000 and (ii) the EBITDA attributable to the Disposed assets
or businesses constitutes more than 1% of EBITDA for the four Fiscal Quarter period most
recently ended for which financial statements of the Company have been or are being, as the
case may be, delivered to the Administrative Agents) by the Company or any of its
Subsidiaries pursuant to the terms hereof (including through mergers or consolidations) as
of such date of determination, as determined by the Company on a pro forma basis in
accordance with GAAP, which determination may include one-time adjustments or reductions in
costs, if any, directly attributable to any such permitted Disposition or Permitted
Acquisition, as the case may be, in each case (i) calculated in accordance with Regulation
S-X of



34









 






the Securities Act of 1933, as amended from time to time, and any successor statute,
or having been certified by the Chief Financial Officer of the Company as having been
prepared in good faith based upon reasonable assumptions, for the period of four Fiscal
Quarters most recently ended for which financial statements of the Company have been or are
being, as the case may be, delivered to the Administrative Agents (without giving effect to
any cost-savings or adjustments relating to synergies resulting from a Permitted Acquisition
except as the Administrative Agents shall otherwise agree) and (ii) giving effect to any
such Permitted Acquisition or permitted Disposition as if it had occurred on the first day
of such four Fiscal Quarter period. For the avoidance of doubt, for purposes of determining
the Leverage Ratio (and any financial calculations required to be made or included within
such ratio) on a pro forma basis as of any date of determination, the calculation of such
Leverage Ratio shall be made using the amount of Total Debt outstanding as of such date of
determination and the amount of EBITDA for the four Fiscal Quarter period most recently
ended for which financial statements of the Company have been delivered to the
Administrative Agents.




     (c) If the Company notifies the Administrative Agents that the Company wishes to amend
any covenant in Article VII or any related definition to eliminate the effect of any
change in GAAP occurring after the date of this Agreement on the operation of such covenant
(or if an Administrative Agent notifies the Company that the Required Lenders wish to amend
Article VII or any related definition for such purpose), then the Company’s
compliance with such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Company and the Required
Lenders. In the event of any such notification from the Company or the Administrative
Agents and until such notice is withdrawn or such covenant is so amended, the Company will
furnish to each Lender and the Administrative Agents, in addition to the financial
statements required to be furnished pursuant to Section 7.1.1 (the “Current GAAP
Financials”), (i) the financial statements described in such Section based upon GAAP as
in effect at the time such covenant was agreed to (the “Prior GAAP Financials”) and
(ii) a reconciliation between the Prior GAAP Financials and the Current GAAP Financials.



     SECTION 1.5 Exchange Rates; Currency Equivalents. The Revolving Loan Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating the Dollar Equivalent of Credit Extensions and amounts
outstanding hereunder denominated in Alternate Currencies. Such Spot Rates shall become effective
as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between
the applicable currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by the Company hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any Currency for purposes of the Loan
Documents shall be such Dollar Equivalent as so determined by the Revolving Loan Administrative
Agent. Wherever in this Agreement in connection with a Credit Extension, conversion, continuation
or prepayment of a Loan, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Credit Extension is denominated in an Alternate Currency, such amount shall be
the relevant Alternate Currency Equivalent of such Dollars, as determined by the Revolving Loan
Administrative Agent.



     SECTION 1.6 Redenomination of Certain Foreign Currencies and Computation of Dollar
Amounts . Each obligation of the Borrowers hereunder to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency
after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such



35









 




expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as
its lawful currency; provided
that if any Credit Extension in the currency of such member state is outstanding immediately prior
to such date, such replacement shall take effect, with respect to such Credit Extension, at the end
of the then current Interest Period. Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agents may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro. References herein to minimum Dollar
amounts and integral multiples stated in Dollars, where they shall also be applicable to Alternate
Currency, shall be deemed to refer to approximate Alternative Currency Equivalents.




     SECTION 1.7 American Legal Terms. References to any legal term or concept (including without limitation those for any action,
remedy, method of judicial proceeding, document, statute, court official, governmental authority or
agency) shall in respect of any jurisdiction other than the United States be construed as
references to the term or concept which most nearly corresponds to it in that jurisdiction.



ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT




     SECTION 2.1 Commitments. On the terms and subject to the conditions of this Agreement, the Lenders and the Issuers
severally agree to make Credit Extensions as set forth below.



     Section 2.1.1 Revolving Loans and Swing Line Loans.




     (a) From time to time on any Business Day occurring from and after the Second
Restatement Effective Date, but prior to the Original Revolving Loan Commitment Termination
Date, each Original Revolving Loan Lender agrees that it will make Original Revolving
Loans (i) to the Company, denominated in Dollars, and (ii) to any Designated Borrower,
denominated in an Alternate Currency, in each case, equal to such Lender’s Original
Revolving Loan Percentage of the Dollar Equivalent (determined as of the most recent
Revaluation Date) of the aggregate amount of each Borrowing of the Original Revolving Loans
requested by the applicable Borrower to be made on such day;




     (b) From time to time on any Business Day occurring from and after the Second
Restatement Effective Date, but prior to the Extended Revolving Loan Commitment Termination
Date, each Extended Revolving Loan Lender agrees that it will make Extended Revolving Loans
(i) to the Company, denominated in Dollars, and (ii) to any Designated Borrower, denominated
in an Alternate Currency, in each case, equal to such Lender’s Extended Revolving Loan
Percentage of the Dollar Equivalent (determined as of the most recent Revaluation Date) of
the aggregate amount of each Borrowing of the Extended Revolving Loans requested by the
applicable Borrower to be made on such day; and




     (c) From time to time on any Business Day occurring from and after the Second
Restatement Effective Date, but prior to the Extended Revolving Loan Commitment Termination
Date, the Swing Line Lender agrees that it will make loans (its “Swing Line Loans”)
denominated in Dollars to the Company equal to the principal amount of the Swing Line Loan
requested by the Company to be made on such day. The Commitment of the Swing Line Lender
described in this clause is herein referred to as its “Swing Line Loan Commitment”.



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On the terms and subject to the conditions hereof, the Borrowers may from time to time borrow,
prepay and reborrow Revolving Loans and Swing Line Loans. No Original Revolving Loan Lender shall
be permitted or required to make any Original Revolving Loan and no Extended Revolving Loan Lender
shall be permitted or required to make any Extended Revolving Loan if, after giving effect thereto,
(i) in the case of Original Revolving Loans, the Dollar Equivalent of such Lender’s Revolving
Exposure would exceed such Lender’s Original Revolving Loan Percentage of the then existing
Original Revolving Loan Commitment Amount, (ii) in the case of Extended Revolving Loans, the Dollar
Equivalent of such Lender’s Revolving Exposure would exceed such Lender’s Extended Revolving Loan
Percentage of the then existing Extended Revolving Loan Commitment Amount, (iii) the Dollar
Equivalent of the aggregate principal amount of Alternate Currency Loans, together with the Dollar
Equivalent of Letters of Credit Outstandings, would exceed the Alternate Currency Commitment
Amount, or (iv) the Dollar Equivalent of the aggregate amount of Revolving Loans and Swing Line
Loans outstanding together with the Dollar Equivalent of Letters of Credit Outstandings would
exceed the Revolving Loan Commitment Amount. Furthermore, the Swing Line Lender shall not be
permitted or required to make Swing Line Loans if, after giving effect thereto, (x) the aggregate
outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan
Commitment Amount or (y) unless otherwise agreed to by the Swing Line Lender, in its sole
discretion, the sum of all Swing Line Loans and Extended Revolving Loans made by the Swing Line
Lender plus the Swing Line Lender’s Extended Revolving Loan Percentage of the aggregate amount of
Letter of Credit Outstandings would exceed the Swing Line Lender’s Extended Revolving Loan
Percentage of the then existing Extended Revolving Loan Commitment Amount.




     Section 2.1.2 Letter of Credit Commitment. Each of the parties hereto acknowledges and agrees that the Existing Letters of Credit
shall continue as Letters of Credit for all purposes under this Agreement and the Loan Documents.
From time to time on any Business Day occurring from the Second Restatement Effective Date but 3
days prior to the Extended Revolving Loan Commitment Termination Date, the relevant Issuer agrees
that it will:




     (a) issue one or more standby letters of credit (relative to such Issuer, its
“Letter of Credit”) in Dollars or in an Alternate Currency for the account of any
Borrower or any Subsidiary Guarantor in the Stated Amount requested by the applicable
Borrower on such day; or




     (b) extend the Stated Expiry Date of an existing standby Letter of Credit previously
issued hereunder.


No Issuer shall be permitted or required to issue any Letter of Credit if, after giving effect
thereto, (i) the Dollar Equivalent (determined as of the most recent Revaluation Date) of the
aggregate amount of all Letter of Credit Outstandings would exceed the then existing Letter of
Credit Commitment Amount or (ii) the sum of the aggregate amount of all Letter of Credit
Outstandings plus the aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the then existing Revolving Loan Commitment Amount.




     Section 2.1.3 Term Loans.




     (a) Prior to the First Restatement Effective Date and pursuant to the terms of the
Existing Credit Agreement, each Original Term Loan Lender made Original Term Loans in
Dollars to the Company equal-to such Original Term Loan Lender’s Original Term Loan
Percentage of the Term Loan Facility in the aggregate principal amount of $305,000,000.
Each of the parties hereto acknowledges and agrees that the Original Term Loans shall
continue as Term Loans for all purposes under this Agreement and the Loan Documents. No
amounts paid or prepaid with respect to Term Loans may be reborrowed.



37









 






     (b) On the Second Restatement Effective Date and pursuant to the terms of the Amendment
Agreement, each New Term Loan Lender shall convert all or a portion of its Original
Revolving Loans (with a corresponding reduction in the total amount of Original Revolving
Loan Commitments) to New Term Loans and each New Term Loan Lender shall make New Term Loans
in Dollars to the Company equal-to such New Term Loan Lender’s New Term Loan Percentage of
the Term Loan Facility in the aggregate principal amount of $100,000,000. No amounts paid
or prepaid with respect to New Term Loans may be reborrowed.



     SECTION 2.2 Reduction of the Commitment Amounts. The Company may, from time to time on any Business Day occurring after the Second
Restatement Effective Date, voluntarily reduce any Commitment Amount on the Business Day so
specified by the Company; provided that all such reductions shall require at least three Business
Days’ prior notice to the applicable Administrative Agent and be permanent, and any partial
reduction of any Commitment Amount shall be in a minimum amount of $10,000,000 and in an integral
multiple of $1,000,000, provided, further, that the Company shall have the right,
upon five Business Days’ written notice to, and the consent (not to be unreasonably withheld or
delayed) of, the Revolving Loan Administrative Agent, to automatically and without any further
action by any Person and notwithstanding anything contained herein to the contrary and subject to
the reallocation (or cash collateralization) of Letter of Credit Outstandings and participations in
Swing Line Loans pursuant to Section 2.10, to permanently terminate any then unfunded
Revolving Loan Commitments of a Defaulting Lender, whereupon such Defaulting Lender shall cease to
have any Revolving Loan Commitments hereunder and the Company shall not be permitted to reborrow
any outstanding Revolving Loans of such Defaulting Lender that are repaid or prepaid hereunder
(and, for the avoidance of doubt, upon any such repayment or prepayment, the Revolving Loan
Commitment of such Defaulting Lender corresponding to the amount so
repaid or prepaid shall be deemed permanently terminated). The Revolving Loan Commitment
Amount shall also be reduced to the extent provided in Section 3.1.2(c). Any optional or
mandatory reduction of the Revolving Loan Commitment Amount pursuant to the terms of this Agreement
which reduces the Revolving Loan Commitment Amount below the sum of (i) the Swing Line Loan
Commitment Amount, (ii) the Alternate Currency Commitment Amount and (iii) the Letter of Credit
Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line Loan
Commitment Amount, Alternate Currency Commitment Amount and/or Letter of Credit Commitment Amount
(as directed by the Borrowers in a notice to the Revolving Loan Administrative Agent delivered
together with the notice of such voluntary reduction in the Revolving Loan Commitment Amount) to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the Swing Line Lender, any Revolving Loan Lender or any Issuer.



     SECTION 2.3 Borrowing Procedures. Loans (other than Swing Line Loans) shall be made by the Lenders in accordance with
Section 2.3.1, and Swing Line Loans shall be made by the Swing Line Lender in accordance
with Section 2.3.2.



     Section 2.3.1 Borrowing Procedure. In the case of Loans (other than Swing Line Loans), by delivering a Borrowing Request to
the Revolving Loan Administrative Agent or the Term Loan Administrative Agent, as applicable, on or
before 12:00 noon on a Business Day, the Borrowers may from time to time irrevocably request, on
the proposed date of the Borrowing in the case of Base Rate Loans, or on three Business Days’
notice in the case of LIBO Rate Loans denominated in Dollars, and in either case not more than five
Business Days’ notice, or on no less than five Business Days’, and no more than ten Business Days’
notice in the case of Alternate Currency Loans, that a Borrowing be made, in the case of LIBO Rate
Loans, in a minimum amount of $5,000,000 (or the Dollar Equivalent thereof) and an integral
multiple of $1,000,000 (or the Dollar Equivalent thereof), in the case of Base Rate Loans, in a
minimum amount of $1,000,000 and an integral multiple of $100,000 or, in either case, in the unused
amount of the applicable Commitment. On the terms and subject to the conditions of this Agreement,



38









 




each Borrowing shall be comprised of the type of Loans, and shall be made on the Business Day and
in the Currency specified in such Borrowing Request. In the case of other than Swing Line Loans,
on or before 11:00 a.m. on such Business Day each Lender that has a Commitment to make the Loans
being requested shall deposit with the applicable Administrative Agent same day funds in an amount
equal to such Lender’s Percentage of the requested Borrowing. Such deposit will be made to the
applicable account which each Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, each Administrative Agent shall make
such funds available to the applicable Borrower by wire transfer to the account such Borrower shall
have specified in its Borrowing Request. No Lender’s obligation to make any Loan shall be affected
by any other Lender’s failure to make any Loan.




     Section 2.3.2 Swing Line Loans; Participations, etc.




     (a) By telephonic notice to the Swing Line Lender on or before 12:00 noon on a Business
Day (promptly confirmed in writing if so requested by the Swing Line Lender), the Borrowers
may from time to time irrevocably request that Swing Line Loans be made by the Swing Line
Lender in an aggregate minimum principal amount of $500,000 and an integral multiple of
$100,000. All Swing Line Loans shall be made as (i) Base Rate Loans and shall not be
entitled to be converted into LIBO Rate Loans or (ii) Daily LIBO Rate Loans and shall not be
entitled to be converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall
be made available by the Swing Line Lender to the applicable Borrower by wire transfer to
the account such Borrower shall have specified in its notice therefor by the close of
business on the Business Day telephonic notice is received by the Swing Line Lender. Upon
the making of each Swing Line Loan, and without further action on the part of the Swing Line
Lender or any other Person, each Extended Revolving Loan Lender (other than the Swing Line
Lender) shall be deemed to have irrevocably purchased, to the extent of its Extended
Revolving Loan Percentage, a participation interest in such Swing Line Loan, and such
Extended Revolving Loan Lender shall, to the extent of its Extended Revolving Loan
Percentage, be responsible for reimbursing within one Business Day the Swing Line Lender for
Swing Line Loans which have not been reimbursed by the Company in accordance with the terms
of this Agreement.




     (b) [Reserved.]




     (c) If (i) any Swing Line Loan shall be outstanding for more than thirty Business Days,
(ii) any Swing Line Loan is or will be outstanding on a date when any Borrower requests that
a Revolving Loan be made, or (iii) any Default shall occur and be continuing, then each
Extended Revolving Loan Lender (other than the Swing Line Lender) irrevocably agrees that it
will, at the request of the Swing Line Lender, make an Extended Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender’s Extended
Revolving Loan Percentage of the aggregate principal amount of all such Swing Line Loans
then outstanding (such outstanding Swing Line Loans hereinafter referred to as the
“Refunded Swing Line Loans”). On or before 11:00 a.m. on the first Business Day
following receipt by each Extended Revolving Loan Lender of a request to make Extended
Revolving Loans as provided in the preceding sentence, each Extended Revolving Loan Lender
shall deposit in an account specified by the Swing Line Lender the amount so requested in
same day funds and such funds shall be applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. At the time the Extended Revolving Loan Lenders make the above
referenced Extended Revolving Loans, the Swing Line Lender shall be deemed to have made, in
consideration of the making of the Refunded Swing Line Loans, Extended Revolving Loans in an
amount equal to the Swing Line Lender’s Extended Revolving Loan Percentage of the aggregate
principal amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in
the case of the Swing Line Lender) of any Extended Revolving Loans pursuant to this clause,
the amount so funded shall become an outstanding Extended Revolving Loan and shall no longer
be owed as a Swing Line Loan. All interest payable with respect to any Extended Revolving
Loans made (or deemed made, in the case of the Swing



39









 






Line Lender) pursuant to this clause
shall be appropriately adjusted to reflect the period of time during which the Swing Line
Lender had outstanding Swing Line Loans in respect of which such Extended Revolving Loans
were made. Each Extended Revolving Loan Lender’s obligation to make the Extended Revolving
Loans referred to in this clause shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, any Obligor or any
Person for any reason whatsoever; (ii) the occurrence or continuance of any Default; (iii)
any adverse change in the condition (financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the termination of any Commitment after the
making of any Swing Line Loan; (v) any breach of any Loan Document by any Person; or (vi)
any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.



     SECTION 2.4 Continuation and Conversion Elections. By delivering prior telephonic notice to the to the applicable Administrative Agent on or
before 10:00 a.m. on a Business Day (such notice to be confirmed in writing within 24 hours
thereafter by delivery of a Continuation/Conversion Notice), any Borrower may from time to time
irrevocably elect:




     (a) on not less than three nor more than five Business Days’ notice, the conversion of
any Base Rate Loan into one or more LIBO Rate Loans denominated in Dollars or the
continuation of any LIBO Rate Loan denominated in Dollars as a LIBO Rate Loan so
denominated; and




     (b) on not less than five nor more than ten Business Days’ notice, the continuation of
any LIBO Rate Loan denominated in an Alternate Currency as a LIBO Rate Loan denominated in
such Alternate Currency;



     provided that any portion of any Loan which is continued or converted hereunder shall be in a
minimum amount of $1,000,000 and in an integral multiple amount of $1,000,000; and provided
further that in the absence of prior notice (which notice may be delivered telephonically
followed by written confirmation within 24 hours thereafter by delivery of a
Continuation/Conversion Notice) with respect to any LIBO Rate Loan denominated in Dollars at least
three Business Days (or, with respect to any LIBO Rate Loan denominated in an Alternate Currency,
at least five Business Days) before the last day of the then current Interest Period with respect
thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate Loan;
provided that (i) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (ii) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing.



     SECTION 2.5 Alternate Currency Loans.




     (a) If any Borrower requests a Borrowing in an Alternate Currency, or if pursuant to
any Continuation/Conversion Notice a Borrower elects to continue any LIBO Rate Loan
denominated in an Alternate Currency, the Revolving Loan Administrative Agent shall in the
notice given to the Original Revolving Loan Lenders and/or the Extended Revolving Loan
Lenders, pursuant to Section 2.3 or Section 2.4, as the case may be, give
details of such request or election including, without limitation, as the case may be, the
aggregate principal amount of the Borrowing in such Alternate Currency to be made by each
Lender pursuant to the terms of this



40









 






Agreement or the aggregate principal amount of such
LIBO Rate Loans to be continued by each Lender pursuant to the terms of this Agreement.




     (b) Each Lender shall be treated as having confirmed that the Alternate Currency
requested, or elected by the applicable Borrower to be continued, is Available to it unless
no later than 9:00 a.m. on the same Business Day of the requested Borrowing or the proposed
continuation it shall have notified the Revolving Loan Administrative Agent that such
Alternate Currency is not Available.




     (c) In the event that the Revolving Loan Administrative Agent has received notification
from any of the Lenders that the Alternate Currency requested or elected by the applicable
Borrower to be continued is not Available, then the Revolving Loan Administrative Agent
shall notify such Borrower and the Lenders no later than 10:00 a.m. on the same Business Day
of the proposed Borrowing or proposed continuation.




     (d) If the Revolving Loan Administrative Agent notifies a Borrower pursuant to
clause (c) above that any of the Lenders has notified the Revolving Loan
Administrative Agent that the Alternate Currency requested or elected by such Borrower to be
continued or converted is not Available, such notification shall (i) in the case of any
Borrowing Request, revoke such Borrowing Request and (ii) in the case of any
Continuation/Conversion Notice, such continuation/conversion with respect thereto shall be
deemed withdrawn and such Alternate Currency Loans shall be redenominated into Base Rate
Loans. The Revolving Loan Administrative Agent will promptly notify the Borrowers and the
Lenders of any such redenomination and in such notice by the Revolving Loan Administrative
Agent to each Lender the Revolving Loan Administrative Agent will state the aggregate Dollar
Equivalent amount of the redenominated Alternate Currency Loans as of the Revaluation Date
with respect thereto and such Lender’s Percentage thereof.




     (e) Notwithstanding anything herein to the contrary, during the existence of an Event
of Default, upon the request of the Lenders holding in excess of 50% of the Revolving Loan
Commitments, all or any part of any outstanding Alternate Currency Loans shall be
redenominated and converted into Base Rate Loans on the last day of the Interest Period with
respect to any such Alternate Currency Loans. The Revolving Loan Administrative Agent will
promptly notify the applicable Borrowers and the applicable Revolving Loan Lenders, as the
case may be, of any such redenomination and conversion request.



     SECTION 2.6 Funding. Each Lender may, if it so elects, fulfill its obligation to make, continue or convert LIBO
Rate Loans hereunder by causing one of its foreign branches or Affiliates (or an international
banking facility created by such Lender) to make or maintain such LIBO Rate Loan; provided that
such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by such Lender,
and the obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless be to such
Lender for the account of such foreign branch, Affiliate or international banking facility. In
addition, each Borrower hereby consents and agrees that, for purposes of any determination to be
made for purposes of Sections 4.1, 4.2, 4.3 or 4.4 it shall be
conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing deposits in
the relevant Currency in its LIBOR Office’s interbank eurodollar market. Each Lender may, at its
option, make any Loan available to any Designated Borrower by causing any foreign or domestic
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of such Designated Borrower to repay such Alternate Currency Loan
in accordance with the terms of this Agreement.



41









 





     SECTION 2.7 Issuance Procedures. By delivering to the Revolving Loan Administrative Agent an Issuance Request on or before
12:00 noon on a Business Day, the Borrowers may from time to time irrevocably request on not less
than three nor more than ten Business Days’ notice, in the case of an initial issuance of a Letter
of Credit and not less than three Business Days’ prior notice, in the case of a request for the
extension of the Stated Expiry Date of a standby Letter of Credit (in each case, unless a shorter
notice period is agreed to by the relevant Issuer, in its sole discretion), that an Issuer issue,
or extend the Stated Expiry Date of, a Letter of Credit in such form as may be requested by the
Borrowers and approved by such Issuer, solely for the purposes described in Section 7.1.7.
Each Letter of Credit shall by its terms be stated to expire on a date (its “Stated Expiry
Date”) no later than the earlier to occur of (i) five Business Days prior to the Extended
Revolving Loan Commitment Termination Date and (ii) (unless otherwise agreed to by an Issuer, in
its sole discretion), one year from the date of its issuance; provided that any Letter of Credit
may provide for renewal periods of up to one year so long as such renewal periods do not exceed the
date set forth in clause (i). Each Issuer will make available to the beneficiary thereof the original
of the Letter of Credit which it issues. Notwithstanding the foregoing, all Letters of Credit
issued hereunder shall be subject to the customary procedures of the applicable Issuer.



     Section 2.7.1 Other Lenders Participation. (a) Upon the issuance of each Letter of Credit on or prior to the LC Trigger Date, and
without further action, each Revolving Loan Lender (other than the Issuer) shall be deemed to have
irrevocably purchased, to the extent of its Revolving Loan Percentage, a participation interest in
such Letter of Credit (including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Revolving Loan Lender shall, to the extent of its Revolving Loan
Percentage, be responsible for reimbursing within one Business Day the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrowers in accordance with Section
2.7.3 of receiving notice from the Issuer for Reimbursement Obligations which have not been
reimbursed by the Borrowers in accordance with Section 2.7.3 (with the terms of this
Section surviving the termination of this Agreement). In addition, such Revolving Loan Lender
shall, to the extent of its Revolving Loan Percentage, be entitled to receive a ratable portion of
the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit (other than the issuance fees payable to the Issuer of such Letter of Credit pursuant to the
last sentence of Section 3.3.3) and of interest payable pursuant to Section 3.2
with respect to any Reimbursement Obligation. To the extent that any Revolving Loan Lender has
reimbursed any Issuer for a Disbursement, such Lender shall be entitled to receive its ratable
portion of any amounts subsequently received (from the Borrowers or otherwise) in respect of such
Disbursement.



     (b) Upon (i) the issuance of each Letter of Credit after the LC Trigger Date or (ii) the
extension or renewal of any Letter of Credit with a Stated Expiry Date that occurs after the LC
Trigger Date, and without further action, each Extended Revolving Loan Lender (other than the
Issuer) shall be deemed to have irrevocably purchased, to the extent of its Extended Revolving Loan
Percentage, a participation interest in such Letter of Credit (including the Contingent Liability
and any Reimbursement Obligation with respect thereto), and such Extended Revolving Loan Lender
shall, to the extent of its Extended Revolving Loan Percentage, be responsible for reimbursing
within one Business Day the Issuer for Reimbursement Obligations which have not been reimbursed by
the Borrowers in accordance with Section 2.7.3 of receiving notice from the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrowers in accordance with
Section 2.7.3 (with the terms of this Section surviving the termination of this Agreement).
In addition, such Extended Revolving Loan Lender shall, to the extent of its Extended Revolving
Loan Percentage, be entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit (other than the issuance
fees payable to the Issuer of such Letter of Credit pursuant to the last sentence of Section
3.3.3) and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any Extended Revolving Loan Lender has reimbursed any
Issuer for a Disbursement, such Lender shall be entitled to receive its ratable portion of any
amounts subsequently received (from the Borrowers or otherwise) in respect of such Disbursement.
For the avoidance of doubt, no Original Revolving Loan



42









 




Lender shall participate (A) in any Letter
of Credit that is issued after the LC Trigger Date or (B) if the Stated Expiry Date of such Letter
of Credit occurs after the LC Trigger Date, in any Letter of Credit that is extended or renewed.




     Section 2.7.2 Disbursements. An Issuer will notify the applicable Borrower and the Revolving Loan Administrative Agent
promptly of the presentment for payment of any Letter of Credit issued by such Issuer, together
with notice of the date (the “Disbursement Date”) such payment shall be made (each such
payment, a “Disbursement”). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the applicable Issuer shall make such payment to the beneficiary (or its designee) of such Letter
of Credit. Prior to 11:00 a.m. on the Disbursement Date, the applicable Borrower will reimburse
the Revolving Loan Administrative Agent, for the account of the applicable Issuer, for all amounts
which such Issuer has disbursed under such Letter of Credit, such payments to be made in Dollars
(and in the amount which is the Dollar Equivalent of any such payment or disbursement made or
denominated in an Alternate Currency) together with interest thereon at a rate per annum equal to
the rate per annum then in effect for Base Rate Loans (with the then Applicable Margin for
Revolving Loans accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in any way the
foregoing and notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, each Borrower hereby acknowledges and agrees that it shall be
obligated to reimburse the applicable Issuer upon each Disbursement of a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of Credit issued hereunder
(whether the account party on such Letter of Credit is a Borrower or a Subsidiary Guarantor).



     Section 2.7.3 Reimbursement . The obligation (a “Reimbursement Obligation”) of the Borrowers under Section
2.7.2 to reimburse an Issuer with respect to each Disbursement (including interest thereon),
and, upon the failure of the Borrowers to reimburse an Issuer, each Revolving Loan Lender’s
obligation under Section 2.7.1 to reimburse an Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrowers or such Revolving Loan Lender, as the case may be, may have or have had against
such Issuer or any Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in such Issuer’s good faith opinion,
such Disbursement is determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided that after paying in full its
Reimbursement Obligation hereunder, nothing herein shall adversely affect the right of the
Borrowers or such Lender, as the case may be, to commence any proceeding against an Issuer for any
wrongful Disbursement made by such Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the part of such Issuer.



     Section 2.7.4 Deemed Disbursements . Upon the occurrence and during the continuation of any Default under Section 8.1.9
or upon notification by the Revolving Loan Administrative Agent (acting at the direction of the
Required Revolving Loan Lenders) to the Borrowers of its obligations under this Section, following
the occurrence and during the continuation of any other Event of Default,




     (a) the aggregate Stated Amount of all Letters of Credit shall, without demand upon or
notice to the Borrowers or any other Person, be deemed to have been paid or disbursed by the
Issuers of such Letters of Credit (notwithstanding that such amount may not in fact have
been paid or disbursed); and




     (b) the Borrowers shall be immediately obligated to reimburse the Issuers for the
amount deemed to have been so paid or disbursed by such Issuers.



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Amounts payable by the Borrowers pursuant to this Section shall be deposited in immediately
available funds with the Revolving Loan Administrative Agent and held as collateral security for
the Reimbursement Obligations. When all Defaults giving rise to the deemed disbursements under
this Section have been cured or waived the Revolving Loan Administrative Agent shall return to the
Borrowers all amounts then on deposit with the Revolving Loan Administrative Agent pursuant to this
Section which have not been applied to the satisfaction of the Reimbursement Obligations.




     Section 2.7.5 Nature of Reimbursement Obligations . The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1,
each Original Revolving Loan Lender or each Extended Revolving Loan Lender, as applicable, shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. No Issuer (except to the extent of its own gross negligence or willful misconduct) shall
be responsible for:




     (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall
have been notified thereof);




     (b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;




     (c) failure of the beneficiary of any such Letter of Credit, or any other party to
which such Letter of Credit may be transferred, to comply fully with any conditions required
in order to demand payment under a Letter of Credit or any other claim of the Borrowers
against any beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among the Borrowers and any beneficiary of any Letter of Credit or any such
transferee;




     (d) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;




     (e) any loss or delay in-the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit;




     (f) errors in interpretation of technical terms;




     (g) the misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or




     (h) any consequences arising from causes beyond the control of such Issuer, including
any governmental acts, and none of the above shall affect or impair, or prevent the vesting
of, any of such Issuer’s rights or powers hereunder.


None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers
granted to any Issuer or any Revolving Loan Lender hereunder. In furtherance and not in limitation
or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good
faith (and not constituting gross negligence or willful misconduct) shall be binding upon each
Obligor and each such Secured Party, and shall not put such Issuer under any resulting liability to
any Obligor or any Secured Party, as the case may be.





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Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other
communication believed in good faith by such Issuer to have been authorized or given by or on
behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents
presented appear on their face substantially to comply with the terms and conditions of the
relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of
Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of
wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if
such presentation had initially been honored, together with any interest paid by such Issuer; (iv)
may honor any drawing that is payable upon presentation of a statement advising negotiation or
payment, upon receipt of such statement (even if such statement indicates that a draft or other
document is being delivered separately), and shall not be liable for any failure of any such draft
or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may
pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices
of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on
such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a
letter of guarantee or of indemnity issued to a carrier or any similar document (each an
“Order”) and honor any drawing in connection with any Letter of Credit that is the subject
of such Order, notwithstanding that any drafts or other documents presented in connection with such
Letter of Credit fail to conform in any way with such Letter of Credit.




     SECTION 2.8 Registers; Notes. The Registers shall be maintained on the following terms.




     (a) The Borrowers hereby designate (i) the Revolving Loan Administrative Agent, in the
case of the Revolving Loan Commitments, Alternate Currency Commitments, Swing Line Loan
Commitments and Letter of Credit Commitments, and (ii) the Term Loan Administrative Agent,
in the case of the Term Loans, to serve as the Borrowers’ agents, solely for the purpose of
this clause, to maintain a register (each, a “Register” and collectively, the
“Registers”) on which such Administrative Agent will record the applicable
Commitment of each Lender, the applicable Loans made by each Lender and each repayment in
respect of the principal amount of such Loans, annexed to which the relevant Administrative
Agent shall retain a copy of each Lender Assignment Agreement delivered to such
Administrative Agent pursuant to Section 10.11. Failure to make any recordation, or
any error in such recordation, shall not affect any Obligor’s Obligations. The entries in
the Registers shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agents and the Lenders shall treat each Person in whose name a Loan is
registered (or, if applicable, to which a Note has been issued) as the owner thereof for the
purposes of all Loan Documents, notwithstanding notice or any provision herein to the
contrary. Any assignment or transfer of a Commitment or the Loans made pursuant hereto
shall be registered in the Registers only upon delivery to the relevant Administrative Agent
of a Lender Assignment Agreement that has been executed by the requisite parties pursuant to
Section 10.11. No assignment or transfer of a Lender’s Commitment or Loans shall be
effective unless such assignment or transfer shall have been recorded in the applicable
Register by the relevant Administrative Agent as provided in this Section.




     (b) Each Borrower agrees that, upon the request to the Administrative Agents by any
Lender, such Borrower will execute and deliver to such Lender a Note evidencing the Loans
made by, and payable to the order of, such Lender in a maximum principal amount equal to
such Lender’s Percentage of the original applicable Commitment Amount. Each Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on
the grid attached to such Lender’s Note (or on any continuation of such grid), which
notations, if
made, shall evidence, inter alia, the date of, the outstanding principal amount of, and
the interest rate and Interest Period applicable to the Loans evidenced thereby. Such
notations shall, to the



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extent not inconsistent with notations made by the applicable
Administrative Agent in its respective Register, be conclusive and binding on each Obligor
absent manifest error; provided that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of any Obligor.



     SECTION 2.9 Designated Borrowers.




     (a) The Company may at any time, upon not less than thirty Business Days’ notice from
the Company to the Revolving Loan Administrative Agent (or such shorter period as may be
agreed by the Revolving Loan Administrative Agent in its sole discretion), designate one or
more wholly-owned Subsidiaries organized under the laws of Japan or The Kingdom of the
Netherlands (each an “Applicant Borrower”), as a Designated Borrower to receive
Alternate Currency Loans hereunder by delivering to the Revolving Loan Administrative Agent
(which shall promptly deliver counterparts thereof to each applicable Lender and the other
Administrative Agent) a duly executed notice and agreement in substantially the form of
Exhibit I-1 (a “Designated Borrower Request and Assumption Agreement”).
The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming
entitled to become a Designated Borrower the Revolving Loan Administrative Agent and the
Lenders shall have received such supporting resolutions, incumbency certificates, opinions
of counsel and other documents or information, in form, content and scope reasonably
satisfactory to the Revolving Loan Administrative Agent, as may be required by the Revolving
Loan Administrative Agent or the Required Lenders in their sole discretion, and Notes signed
by such new Borrowers to the extent any Lenders so require. If the Revolving Loan
Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be
entitled to receive Alternate Currency Loans hereunder, then promptly following receipt of
all such documents or information, the Revolving Loan Administrative Agent shall send a
notice in substantially the form of Exhibit I-2 (a “Designated Borrower
Notice”) to the Company, the other Administrative Agent and the Lenders specifying the
effective date upon which the Applicant Borrower shall constitute a Designated Borrower for
purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to
receive Alternate Currency Loans hereunder, on the terms and conditions set forth herein,
and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower
for all purposes of this Agreement.




     (b) To the extent each Foreign Subsidiary and each Designated Borrower has not already
executed a Subsidiary Guaranty and granted and perfected Liens over its assets to secure all
of the Obligations, each Designated Borrower will cause each of its Subsidiaries to execute
a Subsidiary Guaranty (Foreign) guaranteeing the Obligations of such Designated Borrower and
each Designated Borrower will and will cause each of its Subsidiaries to execute any
documentation and take all other actions deemed reasonably necessary by the Collateral Agent
to secure the Obligations of such Designated Borrower and such Subsidiaries hereunder or
under such Subsidiary Guaranty (Foreign), as applicable and grant Liens on such Person’s
assets, in a manner and to the extent that a U.S. Subsidiary is required to secure its
Obligations under the Subsidiary Guaranty (Domestic) pursuant to the terms hereof and the
Subsidiary Guaranty (Domestic) and will otherwise comply with Section 7.1.8.




     (c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to
this Section hereby irrevocably appoints the Company as its agent for all purposes
relevant to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all documents, instruments
and certificates contemplated herein and all modifications hereto, and (iii) the receipt of
the proceeds of any Alternate Currency Loans made by the Lenders, to any such Designated
Borrower hereunder.



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Any acknowledgment, consent, direction, certification or other action
which might otherwise be valid or effective only if given or taken by all Borrowers, or by
each Borrower acting singly, shall be valid and effective if given or taken only by the
Company, whether or not any such other Borrower joins therein. Any notice, demand, consent,
acknowledgement, direction, certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to have been delivered to each
Designated Borrower.




     (d) The Company may from time to time, upon not less than thirty Business Days’ notice
from the Company to the Revolving Loan Administrative Agent (or such shorter period as may
be agreed by the Administrative Agents in their sole discretion), terminate a Designated
Borrower’s status as such; provided that there are no outstanding Alternate Currency Loans
payable by such Designated Borrower, or other amounts payable by such Designated Borrower on
account of any Alternate Currency Loans made to it, as of the effective date of such
termination. The Revolving Loan Administrative Agent will promptly notify the other
Administrative Agent and the Lenders of any such termination of a Designated Borrower’s
status.



     SECTION 2.10 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Loan
Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such
Revolving Loan Lender is a Defaulting Lender:




     (a) If a Revolving Loan Lender has any Letter of Credit Outstandings (other than any
Letter of Credit Outstandings described in clause (b) of the definition thereof that have
been funded by such Defaulting Lender) or if Swing Line Loans are outstanding at any time
such Revolving Loan Lender is a Defaulting Lender then:




     (i) With respect to Letters of Credit issued on or prior to the LC Trigger
Date, all or any part of such Letter of Credit Outstandings (other than any Letter
of Credit Outstandings described in clause (b) of the definition thereof that have
been funded by such Defaulting Lender) shall be reallocated among the Revolving Loan
Lenders that are not Defaulting Lenders in accordance with their respective
Revolving Loan Percentage of the Letter of Credit Outstandings but only to the
extent (x) the sum of (1) the principal amount of outstanding Revolving Loans of all
Revolving Loan Lenders that are not Defaulting Lenders, and (2) the Letter of
Credit Outstandings of all Revolving Loan Lenders that are not Defaulting Lenders,
including their pro rata shares of the Defaulting Lender’s Letter of Credit
Outstandings (other than any Letter of Credit Outstandings described in clause (b)
of the definition thereof that have been funded by such Defaulting Lender), does not
exceed the total Revolving Loan Commitments of all Revolving Loan Lenders that are
not Defaulting Lenders, (y) the sum of (1) the principal amount of outstanding
Revolving Loans of any Revolving Loan Lender that is not a Defaulting Lender and (2)
the Letter of Credit Outstandings of such Revolving Loan Lender that is not a
Defaulting Lender, including its pro rata share of the Defaulting Lender’s allocated
Letter of Credit Outstandings (other than any Letter of Credit Outstandings
described in clause (b) of the definition thereof that have been funded by such
Defaulting Lender), does not exceed the Revolving Loan Commitment of such Revolving
Loan Lender that is
not a Defaulting Lender, and (z) the conditions set forth in Section
5.2.1 are satisfied at such time;




     (ii) With respect to Letters of Credit issued after the LC Trigger Date, all or
any part of such Letter of Credit Outstandings (other than any Letter of Credit
Outstandings described in clause (b) of the definition thereof that have been funded
by such Defaulting Lender) and/or participations in Swing Line Loans shall be
reallocated



47









 






among the Extended Revolving Loan Lenders that are not Defaulting
Lenders in accordance with their respective Extended Revolving Loan Percentage of
the Letter of Credit Outstandings and/or participations in Swing Line Loans but only
to the extent (x) the sum of (1) the principal amount of outstanding Extended
Revolving Loans of all Extended Revolving Loan Lenders that are not Defaulting
Lenders, (2) the Letter of Credit Outstandings of all Extended Revolving Loan
Lenders that are not Defaulting Lenders and (3) the participations in outstanding
Swing Line Loans of all Extended Revolving Loan Lenders that are not Defaulting
Lenders, including their pro rata shares of the Defaulting Lender’s Letter of Credit
Outstandings (other than any Letter of Credit Outstandings described in clause (b)
of the definition thereof that have been funded by such Defaulting Lender) and
participations in outstanding Swing Line Loans, does not exceed the total Extended
Revolving Loan Commitments of all Extended Revolving Loan Lenders that are not
Defaulting Lenders, (y) the sum of (1) the principal amount of outstanding Extended
Revolving Loans of any Extended Revolving Loan Lender that is not a Defaulting
Lender, (2) the Letter of Credit Outstandings of such Extended Revolving Loan Lender
that is not a Defaulting Lender and (3) the participations in outstanding Swing Line
Loans of such Extended Revolving Loan Lender that is not a Defaulting Lender,
including its pro rata share of the Defaulting Lender’s allocated Letter of Credit
Outstandings (other than any Letter of Credit Outstandings described in clause (b)
of the definition thereof that have been funded by such Defaulting Lender) and/or
Swing Line Loans, does not exceed the Extended Revolving Loan Commitment of such
Extended Revolving Loan Lender that is not a Defaulting Lender, and (z) the
conditions set forth in Section 5.2.1 are satisfied at such time;




     (iii) if the reallocation described in clause (i) or clause
(ii) above, as applicable, cannot, or can only partially, be effected, the
Company shall, within ten Business Days following notice by the Revolving Loan
Administrative Agent, deposit cash collateral in an amount equal to such Defaulting
Lender’s Letter of Credit Outstandings (other than any Letter of Credit Outstandings
described in clause (b) of the definition thereof that have been funded by such
Defaulting Lender) and participations in Swing Line Loans (after giving effect to
any partial reallocation pursuant to clause (i) above) into a cash collateral
account maintained with (and subject to documentation reasonably satisfactory to)
the Collateral Agent for the benefit of the Secured Parties (and over which the
Collateral Agent shall have a first priority perfected Lien), for so long as such
Letter of Credit Outstandings and/or participations in Swing Line Loans are
outstanding; and




     (iv) if the Letter of Credit Outstandings of the Original Revolving Loan
Lenders or Extended Revolving Loan Lenders that are not Defaulting Lenders are
reallocated pursuant to this Section 2.10(a), then the fees payable to the
Revolving Lenders pursuant to Section 3.3.3 shall be adjusted in accordance
with such Revolving Loan Lenders’ Revolving Loan Percentage (in the case of Letters
of Credit issued on or prior to the LC Trigger Date) or Extended Revolving Loan
Percentage (in the case of Letters of Credit issued after the LC Trigger Date), as
applicable.




     (b) So long as any Extended Revolving Loan Lender is a Defaulting Lender, (i) the
Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is
satisfied that the related exposure will be 100% covered by the Revolving Loan Commitments
of the Revolving Loan Lenders that are not Defaulting Lenders or, in the case of Letters of
Credit issued after the LC Trigger Date, the Extended Revolving Loan Commitments of the
Extended Revolving Loan Lenders that are not Defaulting Lenders, as applicable, or cash
collateral will be



48









 






provided by the Company satisfactory to the Revolving Loan Administrative
Agent and the Issuer, and participating interests in any newly issued or increased Letter of
Credit shall be allocated among Revolving Loan Lenders that are not Defaulting Lenders or
the Extended Revolving Loan Lenders that are not Defaulting Lenders, as applicable, in a
manner consistent with Section 2.10(a)(i) or Section 2.10(a)(ii), as
applicable (and Defaulting Lenders shall not participate therein) and any unallocated Letter
of Credit Outstandings of the Defaulting Lender shall be cash collateralized, and (ii) the
Swing Line Lender shall not be required to make Swing Line Loans, unless it is satisfied
that the related exposure will be 100% covered by the Extended Revolving Loan Commitments of
the Extended Revolving Loan Lenders that are not Defaulting Lenders or cash collateral will
be provided by the Company satisfactory to the Revolving Loan Administrative Agent and the
Swing Line Lender, and participating interests in any newly made Swing Line Loans shall be
allocated among Extended Revolving Loan Lenders that are not Defaulting Lenders in a manner
consistent with Section 2.10(a)(ii) (and Defaulting Lenders shall not participate
therein) and any unallocated participations in Swing Line Loans of the Defaulting Lender
shall be cash collateralized.




     In the event that the Revolving Loan Administrative Agent, the Company, the Issuer and,
in the case of an Extended Revolving Lender that is a Defaulting Lender, the Swing Line
Lender each agree that a Defaulting Lender has adequately remedied all matters that caused
such Revolving Loan Lender to be a Defaulting Lender, then the Letter of Credit Outstandings
and/or, in the case of an Extending Revolving Lender that is a Defaulting Lender,
participations in Swing Line Loans of the Revolving Loan Lenders shall be readjusted to
reflect the inclusion of such Lender’s Revolving Loan Commitments, and on such date the
Revolving Loan Administrative Agent shall return to the Company any cash collateral that has
been granted pursuant to this Section 2.10.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




     SECTION 3.1 Repayments and Prepayments; Application. The Borrowers agree that the Loans shall be repaid and prepaid pursuant to the following
terms.



     Section 3.1.1 Repayments and Prepayments. The Borrowers shall repay in full the unpaid principal amount of each Loan upon the
applicable Stated Maturity Date therefor. Prior thereto, payments and prepayments of the Loans
shall or may be made as set forth below.




     (a) From time to time on any Business Day, the Borrowers may make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any:




     (i) Loans (other than Swing Line Loans); provided that:




     (A) any such prepayment shall be made pro rata among Loans of the same
type and denominated in the same Currency, if applicable, having the same
Interest Period of all Lenders that have made such Loans, and in the case of
Term Loans, applied to the remaining amortization payments in such amounts
as the Borrowers shall determine;




     (B) no such prepayment of any LIBO Rate Loan may be made on any day
other than the last day of the Interest Period for such Loan unless payments
required, if any, pursuant to Section 4.4 are made;



49









 






     (C) all such voluntary prepayments with respect to Term Loans shall be
received by the Term Loan Administrative Agent by 12:00 noon at least three
but no more than five Business Days’ prior to the date of such repayment;
and




     (D) all such voluntary partial prepayments shall, in the case of Base
Rate Loans, be in an aggregate minimum amount of $1,000,000 and an integral
multiple of $100,000, and in the case of LIBO Rate Loans, be in an aggregate
minimum amount of $1,000,000 and an integral multiple of $1,000,000; and




     (ii) Swing
 Line Loans; provided that (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m. on
the day of such prepayment (such notice to be confirmed in writing within 24 hours
thereafter); (B) all such voluntary partial prepayments shall be in an aggregate
minimum amount of $500,000 and an integral multiple of $100,000 and (C) no such
prepayment of any Daily LIBO Rate Loans may be made on any day other than the
maturity date for such Loan unless payments required, if any, pursuant to
Section 4.4 are made.




     (b) On each date when aggregate (i) Original Revolving Exposure of all Original
Revolving Loan Lenders exceeds the Original Revolving Loan Commitment Amount (as it may be
reduced from time to time pursuant to this Agreement) and/or (ii) Extended Revolving
Exposure of all Extended Revolving Loan Lenders exceeds the Extended Revolving Loan
Commitment Amount (as it may be reduced from time to time pursuant to this Agreement), the
Borrowers shall make a mandatory prepayment of Original Revolving Loans, Extended Revolving
and/or Swing Line Loans, as applicable and, if necessary, Cash Collateralize all Letter of
Credit Outstandings, in an aggregate amount equal to such excess.




     (c) Commencing on the Quarterly Payment Date occurring on April 1, 2007 and continuing
on each Quarterly Payment Date thereafter through and including the fourth Quarterly Payment
Date prior to the applicable Stated Maturity Date, the Company shall make a scheduled
repayment of the aggregate outstanding principal amount, if any, of (i) all Original Term
Loans in an amount equal to 0.25% of the original principal amount of the Original Term
Loans and (ii) all New Term Loans in an amount equal to 0.25% of the original principal
amount of the New Term Loans. The balance thereof shall be due in four equal installments,
payable on the three Quarterly Payment Dates preceding the applicable Stated Maturity Date
and on the applicable Stated Maturity Date.




     (d) Concurrently with the receipt by the Company of any Net Equity Proceeds, the
Company shall make, or cause to be made, a mandatory prepayment of the Loans in an amount
equal to the product of (i) such Net Equity Proceeds multiplied by (ii) the
applicable Proceeds Reduction Percentage, to be applied as set forth in Section
3.1.2; provided that, notwithstanding the foregoing, with respect to the Net
Equity Proceeds from the Equity Offering, the Company
shall make, or cause to be made, a mandatory prepayment of the Loans in an amount equal
to 100% of all such Net Equity Proceeds in excess of $50,000,000.




     (e) Concurrently with the receipt by the Company or any Subsidiary of any Net Debt
Proceeds, the Company shall make, or cause to be made, a mandatory prepayment of the Loans
in an amount equal to 100% of such Net Debt Proceeds, to be applied as set forth in
Section 3.1.2.




     (f) With respect to Net Disposition Proceeds:



50









 






     (i) If the Leverage Ratio at the time of and immediately after giving effect to
such Disposition is greater than 3.50:1.00, then within five Business Days following
receipt by the Company or any Subsidiary of any Net Disposition Proceeds resulting
from Dispositions made pursuant to clause (c) of Section 7.2.8 (but
only to the extent that the aggregate amount of such Net Disposition Proceeds
exceeds $20,000,000 since the Amendment No. 4 Effective Date and excluding any cash
proceeds received in connection with the Specified Dispositions) or Net Casualty
Proceeds, the Company shall deliver to the Administrative Agents a calculation of
the amount of such proceeds and the Company shall (I) make, or cause to be made, a
mandatory prepayment of the Loans as set forth in Section 3.1.2 in an amount
equal to 100% of such Net Disposition Proceeds or Net Casualty Proceeds or, if
applicable in the case of any such Net Disposition Proceeds, the greater of (x) 95%
of such Net Disposition Proceeds or (y) 100% of such Net Disposition Proceeds less
the amount of any working capital purchase price adjustment payments that in the
good faith judgment of the Company may be required to be made by the Company or its
Subsidiaries no later than 90 days following such receipt (“Working Capital
Payments”), and (II) in the event that less than 100% of such Net Disposition
Proceeds are applied to make a mandatory prepayment of the Loans as described above,
deposit, or cause to be deposited, an amount equal to the lesser of (x) 5% of such
Net Disposition Proceeds or (y) the amount of applicable Working Capital Payments,
into a cash collateral account maintained with (and subject to documentation
reasonably satisfactory to) the Collateral Agent for the benefit of the Secured
Parties (and over which the Collateral Agent shall have a first priority perfected
Lien) pending application as a mandatory prepayment or working capital purchase
price adjustment payment (amounts deposited in such cash collateral account shall be
invested in Cash Equivalent Investments, as directed by the Company), and thereafter
upon the earlier of (i) 90 days following such receipt by the Company or the
applicable Subsidiary of such Net Disposition Proceeds or (ii) the date that the
Company or its applicable Subsidiary makes the applicable working capital purchase
price adjustment payment from the amount on deposit in the cash collateral account
or determines that no such payment is required to be made, the Company shall make a
mandatory prepayment of the Loans as set forth in Section 3.1.2 in an amount
equal to any remaining amount on deposit in the cash collateral account;
provided that upon written notice by the Company to the Administrative
Agents not more than five Business Days following receipt of any Net Disposition
Proceeds resulting from a Disposition or series of related Dispositions where such
Net Disposition Proceeds in the aggregate are in an amount less than $5,000,000
(“Reinvestment Proceeds”) or receipt of any Net Casualty Proceeds (in each
case, so long as no Default has occurred and is continuing), such proceeds may be
retained by the Company and its Subsidiaries (which retained proceeds (i) shall be
excluded from the prepayment requirements of this clause and (ii) may, in the
Company’s discretion, be used to repay, on a pro rata basis, the outstanding
Original Revolving Loans and Extended Revolving Loans without a corresponding
permanent reduction of the Original
Revolving Loan Commitment Amount or the Extended Revolving Loan Commitment
Amount pending reinvestment in accordance with the terms hereof) if:




     (A) the Company informs the Administrative Agents in such notice of its
good faith intention to apply (or cause one or more of the Subsidiary Guarantors
to apply) such Reinvestment Proceeds or Net Casualty Proceeds to the acquisition
of other assets or properties or the consummation of the restructuring of other
assets or properties of the Company and/or its Subsidiaries; provided that such
acquired assets or properties are owned by the Company or a Subsidiary, the
Capital Securities of which has been pledged to the Collateral Agent for the
benefit of the Secured Parties



51









 






(and, with respect to such Capital Securities,
over which the Collateral Agent shall have a first priority perfected Lien)
pursuant to the terms hereof and the other Loan Documents, consistent with the
businesses permitted to be conducted pursuant to Section 7.2.1
(including by way of merger or Investment), and




     (B) within one year following the receipt of such Reinvestment Proceeds or
within 180 days following receipt of such Net Casualty Proceeds, such proceeds
are applied or committed to such application.




The amount of such Reinvestment Proceeds or Net Casualty Proceeds unused or
uncommitted after such one year or 180 day period, as applicable, shall be applied
to prepay the Loans as set forth in Section 3.1.2. At any time after
receipt of any such Reinvestment Proceeds and Net Casualty Proceeds in the aggregate
in excess of $5,000,000 but prior to the application thereof to a mandatory
prepayment or the acquisition of other assets or properties as described above, upon
the request by the Administrative Agents to the Company, the Company shall deposit
an amount equal to such Reinvestment Proceeds and Net Casualty Proceeds into a cash
collateral account maintained with (and subject to documentation reasonably
satisfactory to) the Collateral Agent for the benefit of the Secured Parties (and
over which the Collateral Agent shall have a first priority perfected Lien) pending
application as a prepayment or to be released as requested by the Company in respect
of such acquisition. Amounts deposited in such cash collateral account shall be
invested in Cash Equivalent Investments, as directed by the Company.
Notwithstanding the foregoing, in the event that the application of Net Disposition
Proceeds or Net Casualty Proceeds by any Foreign Subsidiary to repay the Loans as
required by this clause would result in a materially increased Tax liability for the
Company (as reasonably determined by the Company in consultation with the
Administrative Agents), such Foreign Subsidiary shall not be required to apply such
Net Disposition Proceeds or such Net Casualty Proceeds to prepay the Loans. For the
avoidance of doubt, any Net Disposition Proceeds resulting from Dispositions
consummated prior to the effectiveness of Amendment No. 4 shall be applied in
accordance with this Agreement, without giving effect to Amendment No. 4.




     (ii) If the Leverage Ratio (at the time of and immediately after giving effect
to such Disposition) is less than or equal to 3.50:1.00, then within five Business
Days receipt by the Company or any Subsidiary of (A) any Net Disposition Proceeds
resulting from Dispositions made pursuant to clause (c) of Section
7.2.8 (other than net cash proceeds received in connection with the Specified
Dispositions) or Net Casualty Proceeds, which such Net Disposition Proceeds and/or
Net Casualty Proceeds exceed $2,500,000 in the aggregate in any period of twelve
consecutive calendar months and (B) any Net Disposition Proceeds resulting from
Dispositions made pursuant to clause (h) of Section 7.2.8, which
proceeds exceed $20,000,000 in the aggregate since the
Amendment No. 4 Effective Date, the Company shall make, or cause to be made, a
mandatory prepayment of the Loans in an amount equal to 100% of such Net Disposition
Proceeds (but only to the extent of the amount of such Net Disposition Proceeds
resulting from proceeds of such Dispositions made pursuant to clause (h) of
Section 7.2.8 (other than any cash proceeds in connection with the Specified
Dispositions) is in excess of $20,000,000) or Net Casualty Proceeds;
provided that, upon written notice by the Company to the Administrative
Agents not more than five Business Days following receipt of any such Net
Disposition Proceeds or Net Casualty Proceeds (so long as no Default has occurred
and is continuing), such proceeds may be retained by the Company and its
Subsidiaries (and be excluded from the prepayment requirements of this clause) if



52









 






(i) the Company informs the Administrative Agents in such notice of its good faith
intention to apply (or cause one or more of the Subsidiary Guarantors to apply) such
Net Disposition Proceeds or Net Casualty Proceeds to the acquisition of other assets
or properties or the consummation of the restructuring of other assets or properties
of the Company and/or its Subsidiaries; provided that such acquired assets or
properties are owned by the Company or a Subsidiary, the Capital Securities of which
have been pledged to the Collateral Agent for the benefit of the Secured Parties
(and, with respect to such Capital Securities, over which the Collateral Agent shall
have a first priority perfected Lien) pursuant to the terms hereof and the other
Loan Documents, consistent with the businesses permitted to be conducted pursuant to
Section 7.2.1 (including by way of merger or Investment), and (ii) within
one year following the receipt of such Net Disposition Proceeds or within 180 days
following receipt of such Net Casualty Proceeds, such proceeds are applied or
committed to such acquisition. The amount of such Net Disposition Proceeds or Net
Casualty Proceeds unused or uncommitted after such one year or 180 day period, as
applicable, shall be applied to prepay the Loans as set forth in Section
3.1.2. At any time after receipt of any such Net Disposition Proceeds or Net
Casualty Proceeds in excess of $5,000,000 but prior to the application thereof to a
mandatory prepayment or the acquisition of other assets or properties as described
above, upon the request by the Administrative Agents to the Company, the Company
shall deposit an amount equal to such Net Disposition Proceeds into a cash
collateral account maintained with (and subject to documentation reasonably
satisfactory to) the Collateral Agent for the benefit of the Secured Parties (and
over which the Collateral Agent shall have a first priority perfected Lien) pending
application as a prepayment or to be released as requested by the Company in respect
of such acquisition. Amounts deposited in such cash collateral account shall be
invested in Cash Equivalent Investments, as directed by the Company.
Notwithstanding the foregoing, in the event that the application of Net Disposition
Proceeds or Net Casualty Proceeds by any Foreign Subsidiary to repay the Loans as
required by this clause would result in a materially increased Tax liability for the
Company (as reasonably determined by the Company in consultation with the
Administrative Agents), such Foreign Subsidiary shall not be required to apply such
Net Disposition Proceeds or such Net Casualty Proceeds to prepay the Loans.




     (iii) Within five Business Days receipt by the Company or any Subsidiary of net
cash proceeds in respect of Specified Dispositions, the Company shall make, or cause
to be made, a mandatory prepayment of the Loans in an amount equal to 75% of such
net cash proceeds in excess of $20,000,000, to be applied as set forth in
Section 3.1.2(c)(ii).




     (g) In the event that the Company and its Subsidiaries shall maintain more than (i)
$25,000,000 of cash and Cash Equivalent Investments in the United States (excluding any
restricted cash that serves as collateral in favor of lessors under the Company’s and its
Subsidiaries’ metal leases and other cash collateral) for a period of three consecutive
Business
Days, the Company shall immediately repay, on a pro rata basis, the
Original Revolving Loans and the Extended Revolving Loans (without a corresponding reduction
to the Original Revolving Loan Commitment Amount or the Extended Revolving Commitment
Amount, as applicable) in amount equal to such excess and (ii) $50,000,000 of cash and Cash
Equivalent Investments outside of the United States (excluding any restricted cash that
serves as collateral in favor of lessors under the Company’s and its Subsidiaries’ metal
leases and other cash collateral), as of the last day of any Fiscal Quarter, the Company
shall immediately repay, on a pro rata basis, the Original Revolving Loans
and the Extended Revolving Loans (without a corresponding reduction to the Original
Revolving Loan Commitment Amount or the Extended Revolving Commitment Amount, as applicable)
in an amount equal to such excess; provided that no such repayment



53









 






under this clause
(ii) shall be required to the extent that the Company or its Subsidiaries shall be unable to
repatriate such excess cash to the United States without violating applicable law or
incurring material and adverse tax liabilities.




     (h) Within 100 days after the close of each Fiscal Year, the Company shall make, or
cause to be made, a mandatory prepayment of the Loans in an amount equal to the product of
(i) Excess Cash Flow (if any) for such Fiscal Year multiplied by (ii) the applicable
Proceeds Reduction Percentage, to be applied as set forth in Section 3.1.2.




     (i) Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant
to Section 8.2 or Section 8.3, the Borrowers shall repay all the Loans,
unless, pursuant to Section 8.3, only a portion of all the Loans is so accelerated
(in which case the portion so accelerated shall be so repaid).


Subject to the payment of any applicable prepayment premium set forth in Section 3.1.3,
each prepayment of any Loans made pursuant to this Section shall be without premium or penalty,
except as may be required by Section 4.4.




     Section 3.1.2 Application. Amounts prepaid pursuant to Section 3.1.1 shall be applied as set forth in this
Section.




     (a) Subject to clause (b) and clause (c) set forth below, each
prepayment or repayment of the principal of the Loans shall be applied, to the extent of
such prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of Section 4.4, to
the principal amount thereof being maintained as LIBO Rate Loans.




     (b) Each prepayment of the Loans made pursuant to clauses (d), (e) and
(h) of Section 3.1.1 shall be applied (i) first, pro rata to
a mandatory prepayment of the outstanding principal amount of all Term Loans (with the
amount of such prepayment of the Term Loans being applied in forward order in accordance
with the amount of each remaining Term Loan amortization payment), and (ii) second, once all
Term Loans have been repaid in full, to the repayment of any outstanding Revolving Loans
(without a corresponding reduction to the Revolving Loan Commitment Amount); provided that,
notwithstanding the foregoing, (A) with respect to the prepayment of the Loans required to
be made pursuant to clause (h) of Section 3.1.1 for the 2006 Fiscal Year,
such prepayment may be applied to the repayment of any outstanding Revolving Loans (without
a corresponding reduction to the Revolving Loan Commitment Amount) and (B) with respect to
the prepayment of Loans in connection with Net Equity Proceeds received in respect of the
Equity Offering, as required to be made pursuant to clause (d) of Section
3.1.1, after application of such proceeds in accordance with Section 7.1.15, 50%
of any
excess proceeds will be applied pro rata to a mandatory prepayment of
the outstanding principal amount of all Original Term Loans and the remaining 50% of such
any such excess will be applied pro rata to a mandatory prepayment of the
outstanding principal amount of all New Term Loans (with the amount of such prepayment of
the Term Loans being applied in forward order in accordance with the amount of each
remaining Term Loan amortization payment).




     (c) (i) Each prepayment of the Loans made pursuant to clause (f) of Section
3.1.1 (other than prepayments made with respect to proceeds of Specified Dispositions as
set forth in clause (ii) of this clause (c)) shall be applied on a pro rata
basis between the then outstanding Term Loans and the Revolving Loan Commitment Amount then
in effect as a mandatory prepayment of the outstanding principal amount of all Term Loans
(with the amount of such



54









 






prepayment of the Term Loans being applied in forward order in
accordance with the amount of each remaining Term Loan amortization payment) and to the
prepayment of any outstanding Revolving Loans (with a corresponding permanent reduction to
the Revolving Loan Commitment Amount to the extent such reduction would not result in the
Revolving Loan Commitment Amount being less than $150,000,000 (it being understood and
agreed that the entire amount of such prepayment that was to be applied to outstanding
Revolving Loans shall nonetheless be applied to the prepayment of outstanding Revolving
Loans)); provided, that if the amount of the prepayment to be applied to outstanding
Revolving Loans is in excess of the actual amount of outstanding Revolving Loans at the time
of such prepayment, such excess amount may be retained by the Company and its Subsidiaries
to be used for general corporate purposes to the extent not otherwise prohibited by this
Agreement, but the Revolving Loan Commitment Amount shall nonetheless be permanently reduced
by the entire amount that was to be applied to outstanding Revolving Loans but only to the
extent such reduction would not result in the Revolving Loan Commitment Amount being less
than $150,000,000; provided, further, that if at the time of the making of
such prepayment of the Loans, the Revolving Loan Commitment Amount is less than or equal to
$150,000,000, then the entire amount of such prepayment shall be applied as a mandatory
prepayment of the outstanding principal amount of all Term Loans (with the amount of such
prepayment of the Term Loans being applied in forward order in accordance with the amount of
each remaining Term Loan amortization payment). The Company shall give prior written notice
to the Administrative Agents of any mandatory prepayment made in connection with this clause
(including the date and an estimate of the aggregate amount of such mandatory prepayment) at
least five Business Days prior thereto; provided that the failure to give such
notice shall not relieve the Company of its obligations to make such mandatory prepayments.




     (ii) With respect to proceeds of Specified Dispositions as required pursuant to
clause (f) of Section 3.1.1, (a) 50% of any such prepayment will be applied
pro rata to a mandatory prepayment of the outstanding principal amount of
all Original Term Loans and the remaining 50% of such prepayment will be applied pro
rata to a mandatory prepayment of the outstanding principal amount of all New Term
Loans (with the amount of such prepayment of the Term Loans being applied in forward order
in accordance with the amount of each remaining Term Loan amortization payment) and (b) any
excess amount remaining thereafter shall be applied as set forth in clause (i)
above.



     Section 3.1.3 Prepayment Premium. If (a) any amendment, supplement, amendment and restatement or other modification of this
Agreement is effected after the First Restatement Effective Date or (b) all (but not less than all)
of the principal outstanding amount of the Term Loans is voluntarily prepaid on or prior to the
first anniversary of the First Restatement Effective Date, in either case, with the proceeds of a
substantially concurrent
issuance or incurrence of new syndicated bank loans (which voluntary prepayment shall be
deemed to have occurred even if a portion of the Term Loans are replaced, converted or re-evidenced
with, into or by such new loans), the effect of which, in the case of either clause (a) or
(b) above, is to decrease the Applicable Margin then in effect with respect to the Term
Loans, Borrowers shall pay the Term Loan Administrative Agent, for the ratable benefit of the Term
Loan Lenders, a prepayment premium in an amount equal to 1% of the aggregate principal amount of
the Term Loans then outstanding; provided that (i) the Term Loans or new loans, as amended (in the
case of clause (a)), or prepaid, replaced, converted or re-evidenced (in the case of
clause (b)), have terms and conditions (other than pricing and the aggregate principal
amount) substantially the same as those of the Term Loans as in effect prior to the amendment,
supplement, amendment and restatement or other modification, prepayment, replacement, conversion or
re-evidencing thereof and (ii) such amendment, amendment, supplement, amendment and restatement or
other modification, prepayment, replacement, conversion or



55









 







re-evidencing is not otherwise
undertaken in connection with another material transaction or series of transactions.



     SECTION 3.2 Interest Provisions. Interest on the outstanding principal amount of the Loans shall accrue and be payable in
accordance with the terms set forth below.



     Section 3.2.1 Rates. Subject to Section 2.3.2, pursuant to an appropriately delivered Borrowing Request
or Continuation/Conversion Notice, the Borrowers may elect that the Loans comprising a Borrowing
accrue interest at a rate per annum:




     (a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate from time to time in effect plus the Applicable Margin; provided
that Swing Line Loans made as Base Rate Loans shall always accrue interest at the Alternate
Base Rate plus the then effective Applicable Margin for Revolving Loans maintained as Base
Rate Loans;




     (b) on that portion maintained from time to time as a Daily LIBO Rate Loan, equal to
the sum of the Daily LIBO Rate from time to time in effect plus the Applicable
Margin for Revolving LIBO Rate Loans; and




     (c) on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) or the LIBO
Alternate Rate, as the case may be, applicable to the Currency in which such Loans are
denominated for such Interest Period plus the Applicable Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.




     Section 3.2.2 Post-Default Rates. After the date any Event of Default has occurred and for so long as such Event of Default
is continuing, each Borrower, as applicable, shall pay (in the applicable Currency), but only to
the extent permitted by law, interest (after as well as before judgment) on all outstanding
Obligations at a rate per annum equal to (a) in the case of principal on any Loan, the rate of
interest that otherwise would be applicable to such Loan plus 2% per annum; and (b) in the case of
overdue interest, fees, and other
monetary Obligations, the Alternate Base Rate from time to time in effect, plus the Applicable
Margin for Term Loans accruing interest at the Base Rate, plus a margin of 2% per annum.



     Section 3.2.3 Payment Dates. Interest accrued on each Loan shall be payable, without duplication:




     (a) on the Stated Maturity Date therefor;




     (b) on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or prepaid;




     (c) with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the
Closing Date;



56









 






     (d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on the date occurring on each
three-month interval occurring after the first day of such Interest Period);




     (e) with respect to any Base Rate Loans converted into LIBO Rate Loans, on a day when
interest would not otherwise have been payable pursuant to clause (c) on the date of
such conversion;




     (f) with respect to any Daily LIBO Rate Loan, at the end of each month; and




     (g) on that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.




     SECTION 3.3 Fees. The Company agrees to pay the fees set forth below. All such fees shall be non-refundable.



     Section 3.3.1 Commitment Fees. The Company agrees to pay to the Revolving Loan Administrative Agent for the account of
each Original Revolving Loan Lender, for the period (including any portion thereof when any of its
Commitments are suspended by reason of the Borrowers’ inability to satisfy any condition of
Article V) commencing on the Closing Date and continuing through the Original Revolving
Loan Commitment Termination Date, a commitment fee in an amount equal to the Applicable Commitment
Fee Margin, in each case on such Lender’s Original Revolving Loan Percentage of the sum of the
average daily unused portion of the Revolving Loan Commitment Amount (net of Letter of Credit
Outstandings). The Company agrees to pay to the Revolving Loan Administrative Agent for the
account of each Extended Revolving Loan Lender, for the period (including any portion thereof when
any of its Commitments are suspended by reason of the Borrowers’ inability to satisfy any condition
of Article V) commencing on the Closing Date and continuing through the Extended Revolving
Loan Commitment Termination Date, a commitment fee in an amount equal to the Applicable Commitment
Fee Margin, in each case on such Lender’s Extended Revolving Loan Percentage of the sum of the
average daily unused portion of the Revolving Loan Commitment Amount (net of Letter of Credit
Outstandings). The making of Swing Line
Loans shall not constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrowers to the Lenders. All commitment fees
payable pursuant to this Section shall be calculated on a year comprised of 360 days and payable by
the Company in arrears on the Closing Date and thereafter on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date following the Closing Date, and on the Original
Revolving Loan Commitment Termination Date or the Extended Revolving Loan Commitment Termination
Date, as applicable.



     Section 3.3.2 Administrative Agents’ Fee. The Borrowers agree to pay to each Administrative Agent, for its own account, the fees in
the amounts and on the dates set forth in the Fee Letter.



     Section 3.3.3 Letter of Credit Fees.




     (a) The Borrowers agree to pay to the Revolving Loan Administrative Agent, for the pro
rata account of the applicable Issuer and each Revolving Loan Lender, a Letter of Credit fee
in a per annum amount equal to the then effective Applicable Margin for Revolving Loans
maintained as LIBO Rate Loans, multiplied by the Stated Amount of each such Letter of Credit
made in respect of the Revolving Loan Commitment, such fees being payable quarterly in
arrears on each Quarterly Payment Date following the date of issuance of each such Letter of
Credit and,



57









 






(i) in the case of Letters of Credit in which an Original Revolving Loan Lender
is participating, on the Original Revolving Loan Commitment Termination Date or (ii)
otherwise, on the Extended Revolving Commitment Termination Date, in each case such fee
being paid in the currency in which the applicable Letter of Credit was issued.




     (b) The Borrowers agree to pay directly to each Issuer a fee in respect of each Letter
of Credit issued by it (a “Fronting Fee”), computed for each day at a rate per annum
equal to 0.125% of the Stated Amount of such Letter of Credit issued by such Issuer which is
outstanding on such day. Accrued Fronting Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Stated Maturity Date for Revolving Loans
(to the extent such Letter of Credit remains outstanding).


All Letter of Credit fees payable pursuant to this Section shall be calculated on a year comprised
of 360 days.




     Section 3.3.4 Equity Offering Fees. In the event that on and as of the date that is
31 trading days after the Second Restatement Effective Date (the “Additional Fee Payment
Date”), the gross cash proceeds of the Equity Offering shall be less than $200,000,000, the
Company agrees to pay to the Revolving Loan Administrative Agent for the account of each Extended
Revolving Loan Lender and the Term Loan Administrative Agent for the account of each Consenting
Term Loan Lender an amount equal to 25 basis points multiplied by (a) in the case of Extended
Revolving Loan Lenders, the aggregate amount of such Lender’s Extended Revolving Loan Commitment
(whether used or unused) immediately prior to the Second Restatement Effective Date and (b) in the
case of Consenting Term Loan Lenders, the aggregate amount of such Lender’s outstanding Original
Term Loans immediately prior to the Second Restatement Effective Date. Such fee shall be fully
earned and payable within one Business Day of the Additional Fee Payment Date.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




     SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine (which determination shall, upon notice thereof to the
Borrowers and the Administrative Agents, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it unlawful, or any
Governmental Authority asserts that it is unlawful, for such Lender to make or continue any Loan
as, or to convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue
or convert any such LIBO Rate Loan shall, upon such determination, forthwith be suspended until
such Lender shall notify the Administrative Agents that the circumstances causing such suspension
no longer exist, and (a) all outstanding LIBO Rate Loans denominated in Dollars payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then current Interest
Periods with respect thereto or sooner, if required by such law or assertion, and (b) all LIBO Rate
Loans denominated in any Alternate Currency shall automatically become due and payable at the end
of the then current Interest Periods with respect thereto or sooner, if required by applicable law.



     SECTION 4.2 Deposits Unavailable. If either of the Administrative Agents shall have determined that:




     (a) Dollar deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or



58









 






     (b) by reason of circumstances affecting it’s relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans denominated
in any Currency;


then, upon notice from such Administrative Agent to the Borrowers and the Lenders, the obligations
of all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as,
or to convert any Loans into, LIBO Rate Loans denominated in such Currency shall forthwith be
suspended until such Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.




     SECTION 4.3 Increased LIBO Rate Loan Costs, etc. The Borrowers agree to reimburse each Lender and Issuer for any increase in the cost to
such Lender or Issuer of, or any reduction in the amount of any sum receivable by such Secured
Party in respect of, such Secured Party’s Commitments and the making of Credit Extensions hereunder
(including the making, continuing or maintaining (or of its obligation to make or continue) any
Loans as, or of converting (or of its obligation to convert) any Loans into, LIBO Rate Loans) that
arise in connection with any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in after the Closing Date of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of law) of any
Governmental Authority, except for such changes with respect to increased capital costs and Taxes
which are governed by Sections 4.5 and 4.6 respectively. Each affected Secured
Party shall promptly notify the applicable Administrative Agent and the Borrowers in writing of the
occurrence of any such event, stating the reasons therefor and the additional amount required fully
to compensate such Secured Party for such increased cost or reduced amount. Such additional
amounts shall be payable by the Borrowers directly to such Secured Party within five Business Days
of its receipt of
such notice, and such notice shall, in the absence of manifest error, be conclusive and
binding on the Borrowers.



     SECTION 4.4 Funding Losses. In the event any Lender shall incur any loss or expense (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to make any Swing Line Loan as a Daily LIBO Rate Loan or to make or continue any portion of
the principal amount of any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan) as a result of




     (a) any (i) conversion or repayment or prepayment of the principal amount of any LIBO
Rate Loan on a date other than the scheduled last day of the Interest Period applicable
thereto, or (ii) repayment or prepayment of any Daily LIBO Rate Loan on a date other the
applicable maturity date thereof, in each case, whether pursuant to Article III or
otherwise;




     (b) any Loans not being made as LIBO Rate Loans or Daily LIBO Rate Loans in accordance
with the Borrowing Request therefor; or




     (c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor;


then, upon the written notice of such Lender to the Borrowers, the Borrowers shall, within five
Business Days of its receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or expense. Such
written notice shall, in the absence of manifest error, be conclusive and binding on the Borrowers.




     SECTION 4.5 Increased Capital Costs. If any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects or



59









 







would affect the
amount of capital required or expected to be maintained by any Secured Party or any Person
controlling such Secured Party, and such Secured Party determines (in good faith but in its sole
and absolute discretion) that the rate of return on its or such controlling Person’s capital as a
consequence of the Commitments or the Credit Extensions made, or the Letters of Credit participated
in, by such Secured Party is reduced to a level below that which such Secured Party or such
controlling Person could have achieved but for the occurrence of any such circumstance, then upon
notice from time to time by such Secured Party to the Borrowers, the Borrowers shall within five
Business Days following receipt of such notice pay directly to such Secured Party additional
amounts sufficient to compensate such Secured Party or such controlling Person for such reduction
in rate of return. A statement of such Secured Party as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the Borrowers. In
determining such amount, such Secured Party may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable.



     SECTION 4.6 Taxes. The Company covenants and agrees as follows with respect to Taxes.




     (a) Any and all payments by the Borrowers under each Loan Document shall be made
without setoff, counterclaim or other defense, and free and clear of, and without deduction
or withholding for or on account of, any Taxes. In the event that any Taxes are
imposed and required to be deducted or withheld from any payment required to be made by any
Obligor to or on behalf of any Secured Party under any Loan Document, then:




     (i) subject to clause (f), if such Taxes are Non-Excluded Taxes, the
amount of such payment shall be increased as may be necessary so that such payment
is made, after withholding or deduction for or on account of such Taxes, in an
amount that is not less than the amount provided for in such Loan Document; and




     (ii) the Borrowers shall withhold the full amount of such Taxes from such
payment (as increased pursuant to clause (a)(i) of this Section) and shall
pay such amount to the Governmental Authority imposing such Taxes in accordance with
applicable law.




     (b) In addition, the Borrowers shall pay all Other Taxes imposed to the relevant
Governmental Authority imposing such Other Taxes in accordance with applicable law.




     (c) As promptly as practicable after the payment of any Taxes or Other Taxes, and in
any event within 45 days of any such payment being due, the Borrowers shall furnish to the
Administrative Agents a copy of an official receipt (or a certified copy thereof) evidencing
the payment of such Taxes or Other Taxes. The Administrative Agents shall make copies
thereof available to any Lender upon request therefor.




     (d) Subject to clause (f), the Company, shall indemnify each Secured Party for
any Non-Excluded Taxes and Other Taxes levied, imposed or assessed on (and whether or not
paid directly by) such Secured Party whether or not such Non-Excluded Taxes or Other Taxes
are correctly or legally asserted by the relevant Governmental Authority. Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have been levied, imposed
or assessed, and promptly upon notice thereof by any Secured Party, the Company shall pay
such Non-Excluded Taxes or Other Taxes directly to the relevant Governmental Authority
(provided that no Secured Party shall be under any obligation to provide any such notice to
the Company). In addition, the Company shall indemnify each Secured Party for any
incremental Taxes that may become payable by such Secured Party as a result of any failure
of the Borrowers to pay any Taxes when due to the appropriate Governmental Authority or to
deliver to the Administrative Agents, pursuant to clause (c), documentation
evidencing the payment of Taxes or Other Taxes.



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With respect to indemnification for
Non-Excluded Taxes and Other Taxes actually paid by any Secured Party or the indemnification
provided in the immediately preceding sentence, such indemnification shall be made within 30
days after the date such Secured Party makes written demand therefor. The Borrowers
acknowledge that any payment made to any Secured Party or to any Governmental Authority in
respect of the indemnification obligations of the Borrowers provided in this clause
(d) shall constitute a payment in respect of which the provisions of clause (a)
and this clause shall apply.




     (e) Each Non-U.S. Lender, on or prior to the date on which such Non-U.S. Lender becomes
a Lender hereunder (and from time to time thereafter upon the request of the Borrowers or
the Administrative Agents, but only for so long as such non-U.S. Lender is legally entitled
to do so), shall deliver to the Company and the applicable Administrative Agent, either (i)
two duly completed copies of either (x) Internal Revenue Service Form W-8BEN claiming
eligibility of the Non-U.S. Lender for benefits of an income tax treaty to which the United
States is a party or (y) Internal Revenue Service Form W-8ECI, or in either case an
applicable successor form; or (ii) in the case of a Non-U.S. Lender that is not legally
entitled to deliver either form listed in clause (e)(i), (x) a certificate to the
effect that such Non-U.S. Lender is not (A) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (referred to as an “Exemption Certificate”) and (y) two
duly completed copies of Internal Revenue Service Form W-8BEN or applicable successor form.




     (f) No Borrower shall be obligated to pay any additional amounts to any Lender pursuant
to clause (a)(i), or to indemnify any Lender pursuant to clause (d), in
respect of United States federal withholding taxes to the extent imposed as a result of (i)
the failure of such Lender to deliver to the Borrowers the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to clause (e), (ii) such form or
forms and/or Exemption Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the Lender being untrue
or inaccurate on the date delivered in any material respect, or (iii) the Lender designating
a successor lending office at which it maintains its Loans which has the effect of causing
such Lender to become obligated for tax payments in excess of those in effect immediately
prior to such designation; provided that the Borrowers shall be obligated to pay additional
amounts to any such Lender pursuant to clause (a)(i), and to indemnify any such
Lender pursuant to clause (d), in respect of United States federal withholding taxes
if (i) any such failure to deliver a form or forms or an Exemption Certificate or the
failure of such form or forms or Exemption Certificate to establish a complete exemption
from U.S. federal withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the Closing Date, which change
rendered such Lender no longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S. federal withholding
tax, or rendered the information or certifications made in such form or forms or Exemption
Certificate untrue or inaccurate in a material respect, (ii) the redesignation of the
Lender’s lending office was made at the request of the Borrowers or (iii) the obligation to
pay any additional amounts to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an Assignee
Lender that becomes an Assignee Lender as a result of an assignment made at the request of
the Borrowers.



     SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc.



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     (a) Unless otherwise expressly provided in a Loan Document, all payments by the
Borrowers pursuant to each Loan Document shall be made by the Borrowers to the applicable
Administrative Agent for the pro rata account of the Secured Parties entitled to receive
such payment. All payments shall be made without setoff, deduction or counterclaim not
later than 12:00 noon on the date due in same day or immediately available funds, in the
applicable Currency, to such account as such Administrative Agent shall specify from time to
time by notice to the Borrowers. Funds received after that time shall, in the sole
discretion of the applicable Administrative Agent, be deemed to have been received by such
Administrative Agent on the next succeeding Business Day. Each Administrative Agent shall
promptly remit in same day funds to each Secured Party its share, if any, of such payments
received by such Administrative Agent for the account of such Secured Party. All interest
(including interest on LIBO Rate Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day) occurring during
the period for which such interest or fee is payable over a year comprised of 360 days (or,
in the case of interest on a Base Rate Loan (calculated at other than the Federal Funds Rate
or the Daily LIBO Rate), 365 days or, if
appropriate, 366 days); provided that to the extent the current market practice is to
compute interest and/or fees in respect of any Alternate Currency or any Loan denominated in
any Alternate Currency in a manner other than as set forth above, all interest and fees
hereunder shall be computed on the basis of such market practice, as certified to the
Borrowers by the applicable Administrative Agent. Payments due on other than a Business Day
shall (except as otherwise required by clause (c) of the definition of “Interest
Period”) be made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees in connection with that payment.




     (b) All amounts received as a result of the exercise of remedies under the Loan
Documents (including from the proceeds received by the Collateral Agent in respect of any
sale of, collection from or other realization upon, all or any part of the collateral
securing the Obligations, which proceeds shall be paid over to the Administrative Agents) or
under applicable law shall be applied upon receipt by either Administrative Agent to the
Obligations as follows:




     (i) first ratably to the payment of all Obligations owing to the
Agents, in their capacity as Agents (including the fees and expenses of counsel to
the Agents),




     (ii) second, after payment in full in cash of the amounts specified in
clause (b)(i), to the ratable payment of all interest (including interest
accruing after the commencement of a proceeding in bankruptcy, insolvency or similar
law, whether or not permitted as a claim under such law) and fees owing under the
Loan Documents, and all costs and expenses owing to the Secured Parties pursuant to
the terms of the Loan Documents, until paid in full in cash,




     (iii) third, after payment in full in cash of the amounts specified in
clauses (b)(i) and (b)(ii), to the ratable payment of the principal
amount of the Loans then outstanding, the aggregate Reimbursement Obligations then
owing, the Cash Collateralization for contingent liabilities under Letter of Credit
Outstandings and credit exposure owing to Secured Parties under Rate Protection
Agreements,




     (iv) fourth, after payment in full in cash of the amounts specified in
clauses (b)(i) through (b)(iii), to the ratable payment of all other
Obligations owing to the Secured Parties, and



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     (v) fifth, after payment in full in cash of the amounts specified in
clauses (b)(i) through (b)(iv), and following the Termination Date,
to each applicable Obligor or any other Person lawfully entitled to receive such
surplus.


For purposes of clause (b)(iii), the “credit exposure” at any time of any Secured Party
with respect to a Rate Protection Agreement to which such Secured Party is a party shall be
determined at such time in accordance with the customary methods of calculating credit exposure
under similar arrangements by the counterparty to such arrangements, taking into account potential
interest rate (or, if applicable, currency) movements and the respective termination provisions and
notional principal amount and term of such Rate Protection Agreement.




     SECTION 4.8 Sharing of Payments. If any Secured Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Credit Extension or
Reimbursement Obligation (other than pursuant to the terms of Sections 4.3,4.4,
4.5 or 4.6) in excess of its pro rata share
of payments obtained by all Secured Parties, such Secured Party shall purchase from the other
Secured Parties such participations in Credit Extensions made by them as shall be necessary to
cause such purchasing Secured Party to share the excess payment or other recovery ratably (to the
extent such other Secured Parties were entitled to receive a portion of such payment or recovery)
with each of them; provided that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Secured Party, the purchase shall be rescinded and each
Secured Party which has sold a participation to the purchasing Secured Party shall repay to the
purchasing Secured Party the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Secured Party’s ratable share (according to the proportion of (a) the
amount of such selling Secured Party’s required repayment to the purchasing Secured Party to (b)
total amount so recovered from the purchasing Secured Party) of any interest or other amount paid
or payable by the purchasing Secured Party in respect of the total amount so recovered. The
Borrowers agree that any Secured Party purchasing a participation from another Secured Party
pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such participation as fully as
if such Secured Party were the direct creditor of the Borrowers in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar law any Secured
Party receives a secured claim in lieu of a setoff to which this Section applies, such Secured
Party shall, to the extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Secured Parties entitled under this Section to share in
the benefits of any recovery on such secured claim.



     SECTION 4.9 Setoff. Each Secured Party shall, upon the occurrence and during the continuance of any Default
described in Section 8.1.1 or clauses (a) through (d) of Section
8.1.9 or, with the consent of the Required Lenders, upon the occurrence and during the
continuance of any other Event of Default, have the right to appropriate and apply to the payment
of the Obligations (whether or not then due), and (as security for such Obligations) each Borrower
hereby grants to each Secured Party a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of such Borrower then or thereafter maintained with such
Secured Party; provided that any such appropriation and application shall be subject to the
provisions of Section 4.8. Each Secured Party agrees promptly to notify the Borrowers and
the Administrative Agents after any such appropriation and application made by such Secured Party;
provided that the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Secured Party under this Section are in addition to other rights
and remedies (including other rights of setoff under applicable law or otherwise) which such
Secured Party may have.



     SECTION 4.10 Removal of Lenders. If any Lender (an “Affected Lender”) (a) fails to consent to an election, consent,
amendment, waiver or other modification to this Agreement or other Loan



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Document that requires the
consent of a greater percentage of the Lenders than the Required Lenders and such election,
consent, amendment, waiver or other modification is otherwise consented to by the Required Lenders,
(b) makes a demand upon the Company for (or if the Company is otherwise required to pay) amounts
pursuant to Section 4.3, 4.5 or 4.6 (and the payment of such amounts are,
and are likely to continue to be, more onerous in the reasonable judgment of the Company than with
respect to the other Lenders), or gives notice pursuant to Section 4.1 requiring a
conversion of such Affected Lender’s LIBO Rate Loans to Base Rate Loans or suspending such Lender’s
obligation to make Loans as, or to convert Loans into, LIBO Rate Loans, or (c) becomes a Defaulting
Lender, the Company may, within 30 days of such consent by the Required Lenders, such receipt by
the Company of such demand or notice or such Lender becoming a Defaulting Lender, as the case may
be, give notice (a “Replacement Notice”) in writing to the applicable Administrative Agent
and such Affected Lender of its intention to cause such Affected Lender to sell all or any portion
of its Loans, Commitments and/or Notes to an Eligible Assignee (a “Replacement Lender”)
designated in such Replacement Notice; provided that no Replacement Notice may be given by the
Company if (i) such replacement conflicts with any applicable law or regulation, (ii) any Event of
Default (other than, in the case of the replacement of a Defaulting Lender, as a result of the
failure of the Company to satisfy its cash collateralization obligations pursuant to Section
2.10(a)(ii)) shall have occurred and be continuing at the time of such replacement or (iii)
prior to any such replacement, such Lender shall have taken any necessary action under Section
4.5 or 4.6 (if applicable) so as to eliminate the continued need for payment of amounts
owing pursuant to Section 4.5 or 4.6. If the applicable Administrative Agent
shall, in the exercise of its reasonable discretion and within 30 days of its receipt of such
Replacement Notice, notify the Company and such Affected Lender in writing that the Replacement
Lender is satisfactory to the applicable Administrative Agent (such consent not being required
where the Replacement Lender is already a Lender), then such Affected Lender shall, subject to the
payment of any amounts due pursuant to Section 4.4, assign, in accordance with Section
10.11, the portion of its Commitments, Loans, Notes (if any) and other rights and obligations
under this Agreement and all other Loan Documents (including Reimbursement Obligations, if
applicable) designated in the Replacement Notice to such Replacement Lender; provided that (i) such
assignment shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such Replacement Lender, (ii) the
purchase price paid by such Replacement Lender shall be in the amount of such Affected Lender’s
Loans designated in the Replacement Notice and/or its Percentage of outstanding Reimbursement
Obligations, as applicable, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and unreimbursed under
Sections 4.3, 4.5 and 4.6), owing to such Affected Lender hereunder and
(iii) the Company shall pay to the Affected Lender and the applicable Administrative Agent all
reasonable out-of-pocket expenses incurred by the Affected Lender and such Administrative Agent in
connection with such assignment and assumption (including the processing fees described in
Section 10.11). Upon the effective date of an assignment described above, the Replacement
Lender shall become a “Lender” for all purposes under the Loan Documents. Each Lender hereby
grants to each Administrative Agent an irrevocable power of attorney (which power is coupled with
an interest) to execute and deliver, on behalf of such Lender as assignor, any assignment agreement
necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances
contemplated by this Section.



     SECTION 4.11 Guaranty by the Company. The Company acknowledges and agrees that, whether or not specifically indicated as such in
a Loan Document, all Designated Borrower Obligations shall be joint and several Obligations of the
Company, and in furtherance of such joint and several Obligations, the Company hereby irrevocably
guarantees the payment of all Designated Borrower Obligations of each Designated Borrower as set
forth below.



     Section 4.11.1 Guaranty. The Company hereby absolutely, unconditionally and irrevocably guarantees the full and
punctual payment when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Designated Borrower Obligations. This guaranty



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constitutes a guaranty of payment when due and not of collection, and the Company specifically
agrees that it shall not be necessary or required that any Secured Party exercise any right, assert
any claim or demand or enforce any remedy whatsoever against any Obligor or any other Person before
or as a condition to the obligations of the Company hereunder.



     Section 4.11.2 Guaranty Absolute, etc. The guaranty agreed to above shall in all respects be a continuing, absolute, unconditional
and irrevocable guaranty of payment, and shall remain in full force and effect until the
Termination Date. The Company guarantees that the Designated Borrower Obligations will be paid
strictly in accordance with the terms of each Loan Document under which such Designated Borrower
Obligations arise, regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto.
The liability of the Company under this Agreement shall be joint and several, absolute,
unconditional and irrevocable irrespective of: (a) any lack of validity, legality or
enforceability of any Loan Document; (b) the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against any Obligor or any other Person (including any
other guarantor) under the provisions of any Loan Document or otherwise, or to exercise any right
or remedy against any other guarantor (including any Obligor) of, or collateral securing, any
Designated Borrower Obligations; (c) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Designated Borrower Obligations, or any other extension,
compromise or renewal of any Designated Borrower Obligation; (d) any reduction, limitation,
impairment or termination of any Designated Borrower Obligations for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and the
Company hereby waives any right to or claim of) any defense (including any defense under or in
connection with any decree) or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Designated Borrower Obligations or otherwise; (e) any amendment to,
rescission, waiver, or other modification of, or any consent to or departure from, any of the terms
of any Loan Document; (f) any addition, exchange, release, surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition of, or consent to or departure
from, any other guaranty held by any Secured Party securing any of the Designated Borrower
Obligations; or (g) any other circumstance which might otherwise constitute a defense available to,
or a legal or equitable discharge of, any Obligor, any surety or any guarantor.



     Section 4.11.3 Reinstatement, etc. The Company agrees that its guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment (in whole or in part) of any of the Designated Borrower
Obligations is rescinded or must otherwise be restored by any Secured Party, upon the insolvency,
bankruptcy or reorganization of any other Designated Borrower, any other Obligor or otherwise, all
as though such payment had not been made.



     Section 4.11.4 Waiver, etc. The Company hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations and this Agreement and any requirement that any Secured
Party protect, secure, perfect or insure any Lien, or any property subject thereto, or exhaust any
right or take any action against any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations, as the case may be.



     Section 4.11.5 Postponement of Subrogation, etc. Each Borrower agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under any Loan Document to which it is a party, nor shall any Borrower seek
or be entitled to seek any contribution or reimbursement from any Obligor, in respect of any
payment made hereunder, under any other Loan Document or otherwise, until following the Termination
Date. Any amount paid to any Borrower on account of any such subrogation rights prior to the
Termination Date shall be held in trust for the benefit of the Secured Parties and shall
immediately be paid and turned over to the Collateral Agent for the benefit of the Secured Parties
in the



65









 







exact form received by such Borrower (duly endorsed
in favor of the Collateral Agent, if required), to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with Section 4.7; provided that
(a) if any Borrower has made payment to the Secured Parties of all or any part of the Obligations;
and (b) the Termination Date has occurred; then at such Borrower’s request, the Collateral Agent,
(on behalf of the Secured Parties) will, at the expense of such Borrower, execute and deliver to
such Borrower appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Borrower of an interest in the
Obligations resulting from such payment. In furtherance of the foregoing, at all times prior to
the Termination Date each Borrower shall refrain from taking any action or commencing any
proceeding against any Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of payments made under
any Loan Document to any Secured Party.



ARTICLE V

CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSION




     SECTION 5.1 Effectiveness. The effectiveness of the amendment and restatement of the Existing Credit Agreement shall
be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in
the Amendment Agreement.



     SECTION 5.2 All Credit Extensions. The obligation of each Lender and each Issuer to make any Credit Extension shall be subject
to the satisfaction of each of the conditions precedent set forth below.



     Section 5.2.1 Compliance with Warranties, No Default, etc. Both before and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application, directly or indirectly, of the proceeds
thereof) the following statements shall be true and correct:




     (a) the representations and warranties set forth in each Loan Document shall, in each
case, be true and correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date); and




     (b) no Default shall have then occurred and be continuing.



     Section 5.2.2 Credit Extension Request, etc. Subject to Section 2.3.2, the Administrative Agents shall have received a Borrowing
Request if Loans are being requested, or an Issuance Request if a Letter of Credit is being
requested or extended. Each of the delivery of a Borrowing Request or Issuance Request and the
acceptance by the Borrowers of the proceeds of such Credit Extension shall constitute a
representation and warranty by the Borrowers that on the date of such Credit Extension (both
immediately before and after giving effect to such Credit Extension and the application of the
proceeds thereof) the statements made in Section 5.2.1 are true and correct in all material
respects.



     Section 5.2.3 Satisfactory Legal Form. All documents executed or submitted pursuant hereto by or on behalf of any Obligor shall be
reasonably satisfactory in form and substance to the Administrative Agents and their counsel, and
the Administrative Agents and their counsel shall have received all information, approvals,
opinions, documents or instruments as the Administrative Agents or its counsel may reasonably
request.



     Section 5.2.4 Cash Balances. After giving effect to the proposed Credit Extension and the application of the proceeds
thereof, the aggregate cash and Cash Equivalent Investments (other than any



66









 







restricted cash that
serves as collateral for metal leases and other cash collateral) of the Company and its
Subsidiaries held in the United States shall not exceed $25,000,000.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into this Agreement and to make Credit
Extensions hereunder, each Borrower represents and warrants to each Secured Party on the Closing
Date and on each other date required pursuant to the Loan Documents as set forth in this Article.



     SECTION 6.1 Organization, etc. Each Obligor is validly organized and existing and in good standing under the laws of the
state or jurisdiction of its incorporation or organization, is duly qualified to do business and is
in good standing as a foreign entity in each jurisdiction where the nature of its business requires
such qualification (unless the failure to be in good standing and/or so qualified could not
reasonably be expected to have a Material Adverse Effect), and has full power and authority and
holds all requisite governmental licenses, permits and other approvals to enter into and perform
its Obligations under each Loan Document to which it is a party, to own and hold under lease its
property and to conduct its business substantially as currently conducted by it.



     SECTION 6.2 Due Authorization, Non-Contravention, etc. The execution, delivery and performance by each Obligor of each Loan Document executed or
to be executed by it, each Obligor’s participation in the consummation of all aspects of the
Transaction, and the execution, delivery and performance by any Borrower or (if applicable) any
Obligor of the agreements executed and delivered by it in connection with the Transaction are in
each case within such Person’s powers, have been duly authorized by all necessary action, and do
not




     (a) contravene any (i) Obligor’s Organic Documents, (ii) court decree or order binding
on or affecting any Obligor or (iii) law or governmental regulation binding on or affecting
any Obligor; or




     (b) result in (i) or require the creation or imposition of, any Lien on any Obligor’s
properties (except as permitted by this Agreement) or (ii) a default under any contractual
restriction binding on or affecting any Obligor.



     SECTION 6.3 Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or other Person (other than those that have been, or on the Second
Restatement Effective Date will be, duly obtained or made and which are, or on the Second
Restatement Effective
Date will be, in full force and effect) is required for the consummation of the Transaction or
the due execution, delivery or performance by any Obligor of any Loan Document to which it is a
party. Neither the Company nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.



     SECTION 6.4 Validity, etc. Each Loan Document to which any Obligor is a party constitutes the legal, valid and binding
obligations of such Obligor, enforceable against such Obligor in accordance with their respective
terms (except, in any case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles
of equity).



     SECTION 6.5 Financial Information. The financial statements of the Company and its Subsidiaries furnished to the
Administrative Agents and each Lender pursuant to Section 5.1.6 of the Existing Credit
Agreement have been prepared in accordance with GAAP consistently applied, and



67









 







present fairly the
consolidated financial condition of the Persons covered thereby as at the dates thereof and the
results of their operations for the periods then ended. All balance sheets, all statements of
income and of cash flow and all other financial information of each of the Company and its
Subsidiaries furnished pursuant to Section 7.1.1 have been and will for periods following
the Closing Date be prepared in accordance with GAAP consistently applied, and do or will present
fairly the consolidated financial condition of the Persons covered thereby as at the dates thereof
and the results of their operations for the periods then ended; provided that unaudited financial
statements of the Company and its Subsidiaries have been prepared without footnotes, without
reliance on any physical inventory and are subject to year-end adjustments.



     SECTION 6.6 No Material Adverse Change. There has been no material adverse change in the financial condition, results of
operations, assets, business, properties of the Company and its Subsidiaries, taken as a whole,
since December 31, 2006.



     SECTION 6.7 Litigation, Labor Controversies, etc. There is no pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened litigation, action, proceeding, labor controversy or investigation:




     (a) except as disclosed in Item 6.7 of the Disclosure Schedule, affecting the
Company any of its Subsidiaries or any other Obligor, or any of their respective properties,
businesses, assets or revenues, which could reasonably be expected to have a Material
Adverse Effect, and no adverse development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding disclosed in Item
6.7; or




     (b) which purports to affect the legality, validity or enforceability of any Loan
Document or the Transaction.



     SECTION 6.8 Subsidiaries. The Company has no Subsidiaries, except those Subsidiaries which are identified in Item
6.8 of the Disclosure Schedule, or which are permitted to have been organized or acquired in
accordance with Sections 7.2.5 or 7.2.7.



     SECTION 6.9 Ownership of Properties. The Company and each of its Subsidiaries owns (a) in the case of owned real property, good
and marketable fee title to, and (b) in the case of owned personal property, good and valid title
to, or, in the case of leased real or personal property, valid and enforceable leasehold interests
(as the case may be) in, all of its properties and assets, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for Liens permitted pursuant
to Section 7.2.3.



     SECTION 6.10 Taxes; Other Laws.




     (a) The Company and each of its Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid all Taxes thereby shown to be due and
owing, except any such Taxes which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books, except where a failure to so file and/or pay could not
reasonably be expected to have a Material Adverse Effect.




     (b) If a Borrowing is repaid in the same country in which such Borrowing is made, there
is no income, stamp or other tax of any country, or any taxing authority thereof or therein,
in the nature of withholding or otherwise, which is imposed on any payment to be made by any



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Borrower pursuant hereto, or is imposed on or by virtue of the execution, delivery,
performance or enforcement of the Obligations.




     (c) Each Obligor is in compliance in all material respects with the requirements of all
applicable laws and all orders, writs, injunctions and decrees applicable to it or to its
properties (except for Environmental Laws which are the subject of Section 6.12),
except in such instances in which the failure to comply therewith, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.




     (d) As of the date hereof, no Obligor is subject to any labor or collective bargaining
agreement. There are no existing or threatened strikes, lockouts or other labor disputes
involving any Obligor that singly or in the aggregate could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payments made to employees of each Obligor are
not in violation of the Fair Labor Standards Act or any other applicable law, rule or
regulation dealing with such matters where such violation could reasonably be expected to
have a Material Adverse Effect.



     SECTION 6.11 Pension and Welfare Plans. During the twelve-consecutive-month period prior to the Closing Date and prior to the date
of any Credit Extension hereunder, no steps have been taken to terminate any Pension Plan, and no
contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a
Lien under Section 302(0) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which might result in the incurrence by the Company or any member of
the Controlled Group of any material liability, fine or penalty. Except as disclosed in Item
6.11 of the Disclosure Schedule, neither the Company nor any member of the Controlled Group has
any contingent liability with respect to any post-retirement benefit under a Welfare Plan that is
subject to ERISA, other than liability for continuation coverage described in Part 6 of Title I of
ERISA.



     SECTION 6.12 Environmental Warranties. Except as set forth in Item 6.12 of the Disclosure Schedule:




     (a) all facilities and property (including underlying groundwater) owned, operated or
leased by the Company or any of its Subsidiaries during the period from and after the date
five years prior to the Closing Date have been, and continue to be, owned, operated or
leased by the Company and its Subsidiaries in material compliance with all Environmental
Laws such that the failure to own, operate or lease such facility or property does not
result in a single liability in excess of $1,000,000 or $5,000,000 in the aggregate for all
such liabilities;




     (b) there are no material pending or threatened (i) claims, complaints, notices or
requests for information received by the Company or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or (ii) complaints, notices or inquiries to
the Company or any of its Subsidiaries regarding potential liability under any Environmental
Law;




     (c) there have been no Releases of Hazardous Materials at, on or under any property now
or previously owned, operated or leased by the Company or any of its Subsidiaries that have,
or could reasonably be expected to have, a Material Adverse Effect;




     (d) the Company and its Subsidiaries have been issued and are in material compliance
with all material permits, certificates, approvals, licenses and other authorizations
relating to environmental matters;



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     (e) no property now or, to the knowledge of the Company, previously owned, operated or
leased by the Company or any of its Subsidiaries is listed or, to the knowledge of the
Company, proposed for listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list of sites
requiring investigation or clean-up;




     (f) there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned, operated or leased by the
Company or any of its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;




     (g) neither the Company nor any of its Subsidiaries has directly transported or
directly arranged for the transportation of any Hazardous Material to any location which is
listed or, to the knowledge of the Company, proposed for listing on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the subject
of federal, state or local enforcement actions or other investigations which may lead to
material claims against the Company or such Subsidiary for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA;




     (h) there are no polychlorinated biphenyls or asbestos present at any property now or
previously owned, operated or leased by the Company or any Subsidiary that, singly or in the
aggregate, have, or could reasonably be expected to have, a Material Adverse Effect; and




     (i) no conditions exist at, on or under any property now owned, operated or leased by
the Company or any Subsidiary which, with the passage of time, or the giving of notice or
both, would give rise to material liability under any Environmental Law.



     SECTION 6.13 Accuracy of Information. None of the factual information heretofore or contemporaneously furnished in writing to any
Secured Party by or on behalf of any Obligor in connection with any Loan Document or any
transaction contemplated hereby (including the Transaction) contains any untrue statement of a
material fact, or omits to state any material fact necessary to make any information not
misleading, and no other factual information hereafter furnished in connection with any Loan
Document by or on behalf of any Obligor to any Secured Party will contain any untrue statement of a
material fact or will omit to state any material fact necessary to make any information not
misleading on the date as of which such information is dated or certified.



     SECTION 6.14 Regulations U and X. No Obligor is engaged in the business of extending credit for the purpose of buying or
carrying margin stock, and no proceeds of any Credit Extensions will be used to purchase or carry
margin stock or otherwise for a purpose which violates, or would be inconsistent with, F.R.S. Board
Regulation U or Regulation X. Terms for which meanings are provided in F.R.S. Board Regulation U
or Regulation X or any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.



     SECTION 6.15 Solvency. The Company and its Subsidiaries, taken as a whole, on a consolidated basis, both before
and after giving effect to any Credit Extensions, are Solvent.



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ARTICLE VII

COVENANTS




     SECTION 7.1 Affirmative Covenants. Each Borrower agrees with each Lender, each Issuer and the Administrative Agents that until
the Termination Date has occurred, each Borrower will, and will cause its Subsidiaries to, perform
or cause to be performed the obligations set forth below.



     Section 7.1.1 Financial Information, Reports, Notices, etc. The Company will furnish each Lender and the Administrative Agents copies of the following
financial statements, reports, notices and information:




     (a) as soon as available and in any event within 45 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, an unaudited consolidated balance sheet of
the Company and its Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of income and cash flow of the Company and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, and including (in each case), in comparative form the
figures for the corresponding Fiscal Quarter in, and year to date portion of, the
immediately preceding Fiscal Year, certified as complete and correct by the chief financial
or accounting Authorized Officer of the Company (subject to normal year-end audit
adjustments);




     (b) as soon as available and in any event within 90 days after the end of each Fiscal
Year, a copy of the consolidated balance sheet of the Company and its Subsidiaries, and the
related consolidated statements of income and cash flow of the Company and its
Subsidiaries for such Fiscal Year, setting forth in comparative form the figures for the
immediately preceding Fiscal Year, audited (without any Impermissible Qualification) by a
“Big Four” accounting firm or other independent public accountants acceptable to the
Administrative Agents, stating that, in performing the examination necessary to deliver the
audited financial statements of the Company, no knowledge was obtained of any Event of
Default;




     (c) concurrently with the delivery of the financial information pursuant to clauses
(a) and (b), a Compliance Certificate, executed by the chief financial or
accounting Authorized Officer of the Company, (i) showing compliance with the financial
covenants set forth in Section 7.2.4 and stating that no Default has occurred and is
continuing (or, if a Default has occurred, specifying the details of such Default and the
action that the Company or an Obligor has taken or proposes to take with respect thereto),
(ii) stating that no Subsidiary has been formed or acquired since the delivery of the last
Compliance Certificate (or, if a Subsidiary has been formed or acquired since the delivery
of the last Compliance Certificate, a statement that such Subsidiary has complied with
Section 7.1.8) and (iii) in the case of a Compliance Certificate delivered
concurrently with the financial information pursuant to clause (b), if the Company’s
Leverage Ratio is equal to or exceeds 3.50:1, a calculation of Excess Cash Flow;




     (d) as soon as possible and in any event within three Business Days after the Company
or any other Obligor obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer of the Company setting forth details of such Default and the action which
the Company or such Obligor has taken and proposes to take with respect thereto;




     (e) as soon as possible and in any event within three Business Days after the Company
or any other Obligor obtains knowledge of (i) the occurrence of any material adverse
development with respect to any litigation, action, proceeding or labor controversy
described in Item 6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action,



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proceeding or labor controversy of the type and materiality described in
Section 6.7, notice thereof and, to the extent any Agent requests, copies of all
documentation relating thereto;




     (f) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by any Obligor of any material liability, fine or penalty, notice
thereof and copies of all documentation relating thereto;




     (g) promptly following the mailing or receipt of any notice or report delivered under
the terms of the Indentures, copies of such notice or report;




     (h) all Patriot Act Disclosures, to the extent reasonably requested by the
Administrative Agents; and




     (i) [Reserved.]




     (j) such other financial and other information as any Lender or Issuer through the
Administrative Agents may from time to time reasonably request (including information and
reports in such detail as the Administrative Agents may request with respect to the terms of
and information provided pursuant to the Compliance Certificate).



     Section 7.1.2 Maintenance of Existence; Compliance with Contracts, Laws, etc. The Company will, and will cause each of its Subsidiaries to, preserve and maintain its
legal existence (except as otherwise permitted by Section 7.2.7), perform in all material
respects their obligations under material agreements to which the Company or a Subsidiary is a
party, and comply in all material respects with all applicable laws, rules, regulations and orders,
including the payment (before the same become delinquent), of all Taxes, imposed upon the Company
or its Subsidiaries or upon their property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been
set aside on the books of the Company or its Subsidiaries, as applicable.



     Section 7.1.3 Maintenance of Properties. The Company will, and will cause each of its Subsidiaries to, maintain, preserve, protect
and keep its and their respective properties in good repair, working order and condition (ordinary
wear and tear excepted), and make necessary repairs, renewals and replacements so that the business
carried on by the Borrowers and their Subsidiaries may be properly conducted at all times, unless
any Borrower or any Subsidiary determines in good faith that the continued maintenance of such
property is no longer economically desirable, necessary or useful to the business of such Borrower
or any of its Subsidiaries or the Disposition of such property is otherwise permitted by
Sections 7.2.7 or 7.2.8.



     Section 7.1.4 Insurance. The Company will, and will cause each of its Subsidiaries to maintain;




     (a) insurance on its property with financially sound and reputable insurance companies
against loss and damage in at least the amounts (and with only those deductibles)
customarily maintained, and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or similar business as the
Borrowers and their Subsidiaries; and



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     (b) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business.


Without limiting the foregoing, all insurance policies required pursuant to this Section shall (i)
name the Collateral Agent on behalf of the Secured Parties as mortgagee (in the case of property
insurance) or additional insured (in the case of liability insurance), as applicable, and provide
that no cancellation or modification of the policies will be made without thirty days’ prior
written notice to the Collateral Agent and (ii) be in addition to any requirements to maintain
specific types of insurance contained in the other Loan Documents.




     Section 7.1.5 Books and Records. The Company will, and will cause each of its Subsidiaries to:




     (a) keep books and records in accordance with GAAP which accurately reflect all of its
business affairs and transactions;




     (b) permit the Administrative Agents or any of their respective representatives, at
reasonable times and intervals and upon reasonable notice to the Company, to visit each of
the
Company’s and its Subsidiaries’ offices, to discuss such Person’s financial matters
with its officers and employees, and, after the occurrence of an Event of Default, its
independent public accountants (and the Company hereby authorizes such independent public
accountant to discuss each of such Person’s financial matters with the Administrative Agents
or any of their respective representatives whether or not any representative of such Person
is present, so long as a representative of such Person has been afforded a reasonable
opportunity to be present) and to examine (and photocopy extracts from) any of such Person’s
books and records; and




     (c) afford all other Lenders and any of their respective representatives the
opportunity to collectively visit the Company’s and its Subsidiaries’ offices on one day per
calendar year, coordinated with the Administrative Agents (such date to be determined by the
Company in consultation with the Administrative Agents and each such Lender to be given
reasonable notice of such visitation date), to discuss such Person’s financial matters with
its officers and employees; provided that each such Lender or any of their respective
representatives, at reasonable times and intervals and upon reasonable notice to the
Company, shall be permitted to do any of the foregoing at any time after the occurrence and
during the continuation of an Event of Default.



     The Company shall pay any fees of such independent public accountant incurred in connection
with any Lender’s exercise of its rights pursuant to this Section.



     Section 7.1.6 Environmental Law Covenant. The Company will, and will cause each of its Subsidiaries to:




     (a) use and operate all of its and their facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect and remain in
material compliance therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws; and




     (b) promptly notify the Agents and provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition of its facilities and properties
in respect



73









 






of, or as to any material non-compliance with, Environmental Laws, and shall
promptly resolve such material non-compliance with Environmental Laws and keep its property
free of any Lien imposed by any Environmental Law.



     Section 7.1.7 Use of Proceeds. The Borrowers have applied, or will apply, the proceeds of the Credit Extensions as
follows:




     (a) in the case of Term Loans, (i) to repay Indebtedness of the Company consisting of
notes or debentures issued under the Indentures and (ii) to repay Revolving Loans in an
amount not to exceed $95,000,000; provided that at such time there is no condition,
occurrence or event which, after notice or lapse of time or both, would constitute an Event
of Default (as defined in each Indenture) or any Event of Default (as defined in each
Indenture) continuing under any Indenture, the Company may repay an additional amount of
Revolving Loans in an amount not to exceed $55,000,000 with the proceeds of Term Loans;




     (b) in the case of the Revolving Loans, for working capital and general corporate
purposes of the Borrowers and the Subsidiary Guarantors, including Capital Expenditures and
Permitted Acquisitions by such Persons, and including the repayment of outstanding
Indebtedness, including Indebtedness under the Indentures; provided that the
Borrowers may not distribute the proceeds of Revolving Loans outside of the United States
if, after giving effect to the proposed distribution and the use thereof, the aggregate cash
and Cash Equivalent Investments (other than any restricted cash that serves as collateral
for metal leases and other cash collateral) of the Company and its Subsidiaries outside of
the United States shall exceed $50,000,000; and




     (c) for issuing Letters of Credit for the account of the Borrowers and the Subsidiary
Guarantors.



     Section 7.1.8 Future Guarantors, Security, etc. The Company will, and will cause each of its Subsidiaries to:




     (a) execute the Subsidiary Guaranty (Domestic) or a supplement thereto unless, in the
case of a Foreign Subsidiary, to do so would result in a materially increased Tax liability
for the Company (as reasonably determined by the Administrative Agents in consultation with
the Company).




     (b) with respect to each U.S. Subsidiary (and any subsequently acquired or created U.S.
Subsidiary), execute the Pledge and Security Agreement or a supplement thereto and a
Mortgage with respect to any real property owned by such Person (other than any Excluded
Property) with a net book value of more than $500,000.




     (c) execute any documents, Foreign Pledge Agreements, Filing Statements, agreements and
instruments, and take all further action (including filing such Mortgages) that may be
required under applicable law, or that the Administrative Agents may reasonably request, in
order to effectuate the transactions contemplated by the Loan Documents and in order to
grant, preserve, protect and perfect the validity and first priority (subject to Liens
permitted by Section 7.2.3) of the Liens created or intended to be created by the
Loan Documents.




     (d) at its cost and expense, promptly secure the Obligations by pledging or creating,
or causing to be pledged or created, perfected Liens with respect to such of its assets and
properties as the Administrative Agents or the Required Lenders shall designate, it being
agreed



74









 






that it is the intent of the parties that the Obligations shall be secured by, among
other things, substantially all the assets of the Company and its U.S. Subsidiaries
(including real and personal property acquired subsequent to the Closing Date (subject to
the limitation in clause (b)); provided that neither the Company nor its
Subsidiaries shall be required to pledge (i) more than 65% of the Voting Securities of any
Foreign Subsidiary unless such pledge would not result in a materially adverse tax
consequences to the Company (as determined by the Administrative Agents) or (ii) the Capital
Securities of any Excluded Subsidiary. Such Liens will be created under the Loan Documents
in form and substance satisfactory to the Agents, and the Company shall deliver or cause to
be delivered to the Agents all such instruments and documents (including legal opinions,
surveys, title insurance policies and Lien searches) as the Agents shall reasonably request
to evidence compliance with this Section.


Notwithstanding the foregoing provisions of this Section, no SPV shall be required, under any
circumstances, to execute any Subsidiary Guaranty or any other Loan Document to grant Liens in any
of its assets to secure the Obligations.




     Section 7.1.9 SEC Reports. The Company shall comply, on a timely basis, with all SEC filing requirements applicable to
the Company and its Subsidiaries.



     Section 7.1.10 Maintenance of Ratings of Loans. The Company will use commercially reasonable efforts to cause its Index Debt Rating with
S&P and Moody’s to be in effect at all times through the Stated Maturity Date.



     Section 7.1.11 Cash Management. The Company will deliver to the Collateral Agent fully executed Control Agreements with
respect to each Deposit Account and Securities Account of the Company and each U.S. Subsidiary
(other than those maintained with the Collateral Agent and accounts holding cash on deposit with
metal lessors or other cash collateral) that at any time holds assets in excess of $1,000,000, in
each case when such account is created or when such threshold is reached.



     Section 7.1.12 Maintenance of Corporate Separateness. The Company will, and will cause each of its Subsidiaries to, satisfy customary corporate
formalities, including the holding of regular board of directors’ and shareholders’ meetings and
the maintenance of corporate offices and records and take all actions reasonably necessary to
maintain their corporate separateness.



     Section 7.1.13 Foreign Subsidiaries; Foreign Pledge Agreements. The Company will deliver, or cause to be delivered, on or before August 31, 2007 (unless
such date is extended with the consent of the Collateral Agent, such consent not to be unreasonably
withheld),




     (a) certificates (in the case of Capital Securities that are securities (as defined in
the UCC)), or such other instruments, agreements, or other arrangements, as the Collateral
Agent may reasonably approve (such approval not to be unreasonably withheld), evidencing 65%
of the issued and outstanding Voting Securities of Ferro B.V., a company organized under the
laws of Holland, (together with all the issued and outstanding non-voting Capital Securities
of such Foreign Subsidiary) directly owned by the Company or any U.S. Subsidiary), which
certificates in each case shall be accompanied by undated instruments of transfer duly
executed in blank, or, if any Capital Securities (in the case of Capital Securities that are
uncertificated securities (as defined in the UCC)), confirmation and evidence satisfactory
to the Agents that the security interest therein has been transferred to and perfected by
the Collateral Agent for the benefit of the Secured Parties in accordance with Articles 8
and 9 of the UCC and all laws otherwise applicable to the perfection of the pledge of such
Capital Securities, and



75









 






     (b) a Foreign Pledge Agreement with regard to the applicable Capital Securities of
Ferro B.V., duly executed and delivered by all parties thereto, which such agreement shall
remain in full force and effect, and all Liens granted to the Collateral Agent thereunder
shall be duly perfected to provide the Collateral Agent with a security interest in and Lien
on all collateral granted thereunder free and clear of other Liens, except to the extent
consented to by the Administrative Agents.



     Section 7.1.14 Consultant. The Company will, and will cause each of its Subsidiaries to, permit a consultant hired by the
Administrative Agents, at reasonable times and intervals and upon reasonable notice to the Company,
to visit each of the Company’s and its Subsidiaries’ offices, to discuss such Person’s financial
matters with its officers and employees and to examine (and photocopy extracts from) any of such
Person’s books and records; provided, that the Company and its Subsidiaries shall only have
obligations pursuant to this sentence to the extent that such consultant executes and delivers a
customary confidentiality agreement and agrees to deliver to the Company a copy of its final
written report; and provided, further, that the Company’s and its Subsidiaries’
obligations pursuant to this sentence shall terminate upon the earlier of (a) the date that such
consultant delivers its final written report to the Administrative Agents and (b) the Second
Restatement Effective Date, unless the Company’s and its Subsidiaries’ obligations pursuant to this
sentence shall be reinstated by the Administrative Agents at their sole discretion any time
thereafter. The Borrowers agree to pay on demand the reasonable fees and out-of-pocket expenses of
such consultant to the Administrative Agents.



     Section 7.1.15 Use of Equity Proceeds. The net proceeds of the Equity Offering shall
be used to pay for certain restructuring costs of the Company and its Subsidiaries and for other
general corporate purposes in an aggregate principal amount of up to $50,000,000. Any net proceeds
in excess of $50,000,000 shall be applied in accordance with the terms of clause (b) of
Section 3.1.2.



     SECTION 7.2 Negative Covenants. Each Borrower covenants and agrees with each Lender, each Issuer and the Administrative
Agents that until the Termination Date has occurred, each Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth below.



     Section 7.2.1 Business Activities. The Company will not, and will not permit any of its Subsidiaries to, engage in any
business activity except those business activities engaged in as of the First Restatement Effective
Date and activities reasonably incidental thereto.



     Section 7.2.2 Indebtedness. The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume
or permit to exist any Indebtedness, other than:




     (a) Indebtedness in respect of the Obligations;




     (b) until the Closing Date, Indebtedness that is to be repaid in full as further
identified in Item 7.2.2(b) of the Disclosure Schedule;




     (c) Indebtedness existing as of the Closing Date which is identified in Item
7.2.2(c) of the Disclosure Schedule, and refinancing of such Indebtedness in a principal
amount not in excess of that which is outstanding on the Closing Date (as such amount has
been reduced following the Closing Date);




     (d) unsecured Indebtedness (i) incurred in the ordinary course of business of the
Company and its Subsidiaries and (ii) in respect of performance, surety or appeal bonds
provided in the ordinary course of business, but excluding (in each case), Indebtedness
incurred through the borrowing of money or Contingent Liabilities in respect thereof;




76












 






     (e) Indebtedness (i) in respect of industrial revenue bonds or other similar
governmental or municipal bonds, (ii) evidencing the deferred purchase price of newly
acquired property or incurred to finance the acquisition of equipment of the Company and its
Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the seller
or a third party) used in the ordinary course of business of the Company and its
Subsidiaries (provided that such Indebtedness is incurred within 90 days of the acquisition
of such property) and (iii) in respect of Capitalized Lease Liabilities; provided that the
aggregate amount of all Indebtedness outstanding pursuant to this clause shall not at any
time exceed $25,000,000;




     (f) Indebtedness of any Subsidiary owing to the Company or any other Subsidiary;




     (g) Indebtedness of a Person existing at the time such Person became a Subsidiary of
the Company, but only if such Indebtedness was not created or incurred in contemplation of
such Person becoming a Subsidiary and the aggregate outstanding amount of all Indebtedness
existing pursuant to this clause does not exceed $10,000,000 at any time;




     (h) in addition to Indebtedness under the Indentures permitted under clause (c) hereof,
Indebtedness of the Company consisting of notes or debentures under the 2008 Indenture in an
aggregate principal amount not to exceed $200,000,000, as such amount is reduced on or after
the date of issuance thereof; provided that all net proceeds from issuances of notes or
debentures under the 2008 Indenture shall either (i) upon receipt thereof, be used to
repurchase, redeem, repay or otherwise extinguish the notes outstanding under the 1998
Indenture as of the Amendment No. 3 Effective Date or (ii) to the extent such proceeds are
not used in the manner set forth in the foregoing clause (i), be placed in an account with
National City and will be used solely for the payment of Indebtedness outstanding under the
1998 Indenture until such Indebtedness has been paid in full; provided further that
Indebtedness outstanding under the 1998 Indenture shall be repaid in full on or prior to the
90th day from the initial date of issuance of notes or debentures under the 2008 Indenture;




     (i) Indebtedness incurred under the Permitted Receivables Programs;




     (j) Indebtedness of Foreign Subsidiaries in connection with local lines of credit in an
aggregate amount not to exceed (i) $25,000,000, if as of the date of any such incurrence
thereof, the Leverage Ratio is greater than 3.50:1.00 and (ii) $50,000,000, if as of the
date of any such incurrence thereof, the Leverage Ratio is equal to or less than 3.50:1.00.




     (k) Indebtedness of the Company and its Subsidiaries in connection with credit cards
issued to employees in the ordinary course of business;




     (l) Indebtedness in respect of Hedging Obligations entered into in the ordinary course
of business and not for speculative purposes;




     (m) other Indebtedness of the Company and its Subsidiaries in an aggregate amount at
any time outstanding not to exceed $20,000,000; and




     (n) unsecured Indebtedness of the Company in an aggregate amount at any time
outstanding not to exceed $20,000,000, the net proceeds of which are used solely to fund the
Company’s cash collateralization obligations pursuant to Section 2.10(a)(ii);
provided that immediately prior to the incurrence of any such Indebtedness, the
Company and its Subsidiaries shall not have cash on hand and Cash Equivalent Investments in
an aggregate amount equal to the



77









 






amount necessary to satisfy the Company’s cash collateralization obligations pursuant
to Section 2.10(a)(ii) plus $20,000,000;


provided that no Indebtedness otherwise permitted by clauses (c), (e), (g)
or (m) shall be assumed, created or otherwise incurred if a Default has occurred and is
then continuing or would result therefrom.




     Section 7.2.3 Liens . The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume
or permit to exist any Lien upon any of its property (including Capital Securities of any Person),
revenues or assets, whether now owned or hereafter acquired, except:




     (a) Liens securing payment of the Obligations, the Indebtedness incurred under the
Indentures and securing Indebtedness of the type described in clauses (j),
(k) or (l) of Section 7.2.2, which are secured on a pari passu basis
in accordance with the Collateral Sharing Agreement and the other Loan Documents;




     (b) until the Closing Date, Liens securing payment of Indebtedness of the type
described in clause (b) of Section 7.2.2;




     (c) Liens existing as of the Closing Date and disclosed in Item 7.2.3(c) of the
Disclosure Schedule securing Indebtedness described in clause (c) of Section
7.2.2, and refinancings of such Indebtedness; provided that no such Lien shall encumber
any additional property and the amount of Indebtedness secured by such Lien is not increased
from that existing on the Closing Date (as such Indebtedness may have been permanently
reduced subsequent to the Closing Date);




     (d) Liens securing Indebtedness of the type permitted under clause (e) of
Section 7.2.2; provided that (i) such Lien is granted within 90 days after such
Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed 80% of the
lesser of the cost or the fair market value of the applicable property, improvements or
equipment at the time of such acquisition (or construction) and (iii) such Lien secures only
the assets that are the subject of the Indebtedness referred to in such clause;




     (e) Liens securing Indebtedness permitted by clause (g) of Section
7.2.2; provided that such Liens existed prior to such Person becoming a Subsidiary, were
not created in anticipation thereof and attach only to specific tangible assets of such
Person (and not assets of such Person generally);




     (f) Liens in favor of carriers, warehousemen, mechanics, materialmen and landlords
granted in the ordinary course of business for amounts not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;




     (g) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other forms of governmental insurance
or benefits, or to secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety and appeal bonds or performance bonds;




     (h) judgment Liens in existence for less than 45 days after the entry thereof or with
respect to which execution has been stayed or the payment of which is covered in full
(subject to



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a customary deductible) by insurance maintained with responsible insurance
companies and which do not otherwise result in an Event of Default under Section
8.1.6;




     (i) easements, rights-of-way, zoning restrictions, minor defects or irregularities in
title and other similar encumbrances not interfering in any material respect with the value
or use of the property to which such Lien is attached;




     (j) Liens for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;




     (k) Liens on inventory that has been chemically combined with precious metals inventory
or inventories so long as the aggregate Indebtedness secured thereby does not exceed
$15,000,000, and Liens on consigned metals or leased metals that are held as Inventory by an
Obligor but for which title has not yet transferred to such Obligor;




     (l) Liens on the assets of the Company or any of its Subsidiaries securing Indebtedness
permitted by clause (i) of Section 7.2.2; and




     (m) Liens securing up to $25,000,000 of Indebtedness of the type permitted by
clause (j) of Section 7.2.2; and




     (n) Liens (not otherwise permitted hereunder) securing obligations not exceeding
$5,000,000 in the aggregate at any time outstanding; provided that such Liens are limited to
assets other than accounts receivable.



     Section 7.2.4 Financial Condition and Operations. The Company will not permit any of the events set forth below to occur.




     (a) The Company will not permit the Leverage Ratio as of the last day of any Fiscal
Quarter occurring during any period set forth below to be greater than the ratio set forth
opposite such period:



	 	 	 
	Period	 	Leverage Ratio
	July 1, 2009 through and including September 30, 2009
	 	7.00:1.00
	October 1, 2009 through and including September 30, 2010
	 	5.75:1.00
	October 1, 2010 through and including December 31, 2010
	 	5.25:1.00
	January 1, 2011 through and including March 31, 2011
	 	4.75:1.00
	April 1, 2011 through and including June 30, 2011
	 	4.25:1.00
	July 1, 2011 through and including September 30, 2011
	 	4.00:1.00
	October 1, 2011 and thereafter
	 	3.50:1.00






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     (b) The Company will not permit the Fixed Charge Coverage Ratio as of the last day of
any Fiscal Quarter occurring during any period set forth below to be less than the ratio set
forth opposite such period:



	 	 	 
	Period	 	Fixed Charge Coverage Ratio
	April 1, 2009 through and including September 30, 2010
	 	1.00:1.00
	October 1, 2010 and thereafter
	 	1.10:1.00






     Section 7.2.5
Investments. The Company will not, and will not permit any of its Subsidiaries to, purchase, make,
incur, assume or permit to exist any Investment in any other Person, except:




     (a) Investments existing on the Closing Date and identified in Item 7.2.5(a) of
the Disclosure Schedule;




     (b) Cash Equivalent Investments;




     (c) 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;




     (d) Investments consisting of any deferred portion of the sales price received by the
Company or any Subsidiary in connection with any Disposition permitted under Section
7.2.8;




     (e) Investments (i) by the Company in any Subsidiaries or by any Subsidiary in other
Subsidiaries or (ii) by any Subsidiary in the Company; provided that the Company and
its U.S. Subsidiaries may not make any Investment in any Foreign Subsidiary if, at the time
of such proposed Investment and after giving effect to the proposed Investment and the use
of proceeds thereof, the Company and its Subsidiaries shall have in excess of $50,000,000 of
cash and Cash Equivalent Investments outside of the United States (excluding any restricted
cash that serves as collateral in favor of lessors under the Company’s and its Subsidiaries’
metal leases and other cash collateral) unless any amounts in excess of $50,000,000 are
applied to prepay Revolving Loans in accordance with and subject to clause (i) of
Section 3.1.1(g);




     (f) Investments constituting (i) accounts receivable arising, (ii) trade debt granted,
or (iii) deposits made in connection with the purchase price of goods or services, in each
case in the ordinary course of business;




     (g) Investments by way of the acquisition of Capital Securities constituting Permitted
Acquisitions permitted by clause (b) of Section 7.2.7; and




     (h) other Investments in an amount not to exceed $20,000,000 over the term of this
Agreement, which amount shall include any Investments made since the Closing Date pursuant
to clause (h) of Section 7.2.5 of the Existing Credit Agreement, provided
that at the time of the making of any such Investment and after giving effect thereto and to
any incurrence of Indebtedness in connection therewith, the Leverage Ratio on a pro forma
basis is less than 3.50:1.00;




provided that



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     (i) any Investment which when made complies with the requirements of the definition of
the term “Cash Equivalent Investment” may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements; and




     (j) no Investment otherwise permitted by clauses (g) or (h) shall be
permitted to be made if any Default has occurred and is continuing or would result
therefrom.



     Section 7.2.6 Restricted Payments, etc. The Company will not, and will not permit any of its Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment, other than (a) Restricted
Payments made by Subsidiaries to the Company, wholly owned Subsidiaries or joint venture partners
and (b) Restricted Payments consisting of dividends on the Company’s Capital Securities so long as
no Default has occurred and is continuing or would be caused thereby, in a maximum aggregate amount
of up to (i) $513,000 for one-time catch-up payments made on or after the Second Restatement
Effective Date relating to the Company’s Series A ESOP Convertible Preferred Stock and (ii)
$170,000 per Fiscal Quarter after the Second Restatement Effective Date.



     Section 7.2.7 Consolidation, Merger; Permitted Acquisitions, etc. Except in connection with a Disposition permitted by Section 7.2.8, the Company
will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with,
or merge into or with, any other Person, or purchase or otherwise acquire all or substantially all
of the assets of any Person (or any division or line of business thereof), except:




     (a) any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and
into, the Company or any other Subsidiary (provided that a Guarantor may only liquidate or
dissolve into, or merge with and into, the Company or another Guarantor), and the assets or
Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Company
or any other Subsidiary (provided that the assets or Capital Securities of any Guarantor may
only be purchased or otherwise acquired by any Borrower or another Guarantor);
provided further that in no event shall any Subsidiary consolidate with or
merge with and into any other Subsidiary unless after giving effect thereto, the Collateral
Agent shall have a perfected pledge of, and security interest in and to, at least the same
percentage of the issued and outstanding interests of Capital Securities (on a fully diluted
basis) and other assets of the surviving Person as the Collateral Agent had immediately
prior to such merger or consolidation in form and substance satisfactory to the Agent and
their respective counsel, pursuant to such documentation and opinions as shall be necessary
in the opinion of the Agents to create, perfect or maintain the collateral position of the
Secured Parties therein; and




     (b) so long as no Default has occurred and is continuing or would occur after giving
effect thereto, the Company or any of its Subsidiaries may, (i) at any time following the
SEC Filing Date, purchase all or substantially all of the assets of any Person (or any
division or line of business thereof), or acquire such Person by merger or otherwise, in
each case, if such purchase or acquisition constitutes a Permitted Acquisition and the
amount expended in connection with such transaction does not exceed $50,000,000 in any
Fiscal Year (except that any amounts unused in any Fiscal Year may be carried over to
subsequent Fiscal Years) and $200,000,000 over the term of this Agreement, which
$200,000,000 shall include any amounts expended in connection with Permitted Acquisitions
since the Closing Date pursuant to clause (b) of Section 7.2.7 of the
Existing Credit Agreement, provided that at the time of the making of any such
purchase or acquisition and after giving effect thereto and to any incurrence of
Indebtedness in connection
therewith, the Leverage Ratio on a pro forma basis is less than 3.50:1.00 and (ii)
consummate the Specified Acquisitions.



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     Section 7.2.8 Permitted Dispositions. The Company will not, and will not permit any of its Subsidiaries to, Dispose of any of the
Company’s or such Subsidiaries’ assets (including accounts receivable and Capital Securities of
Subsidiaries) to any Person in one transaction or series of transactions unless such Disposition
is:




     (a) inventory or obsolete, damaged, worn out or surplus property Disposed of in the
ordinary course of its business;




     (b) permitted by Section 7.2.7;




     (c) (i) (A) for fair market value (and the Company shall promptly deliver to the
Administrative Agents a resolution adopted by the Company’s board of directors confirming
its determination in good faith that such Disposition is for fair market value if the Net
Disposition Proceeds resulting therefrom are in excess of $300,000,000) and the
consideration received consists of no less than 80% in cash, (B) the Net Disposition
Proceeds from such Disposition are applied pursuant to Sections 3.1.1 and
3.1.2 and (C) at the time of the consummation of such Disposition and after giving
effect thereto and to any incurrence of Indebtedness in connection therewith, the Leverage
Ratio on a pro forma basis (x) is not greater than the Leverage Ratio as
calculated at such time without giving effect to such Disposition and (y) shall not be
greater than the maximum Leverage Ratio permitted pursuant to Section 7.2.4(a) for
the applicable period; provided that the requirements of clause (C) of this
Section 7.2.8(c)(i) shall only apply if (I) the Net Disposition Proceeds resulting
from such Disposition are more than $5,000,000 and (II) the EBITDA attributable to the
Disposed assets or businesses constitutes more than 1% of EBITDA for the four Fiscal Quarter
period most recently ended for which financial statements of the Company have been delivered
to the Administrative Agents, and (ii) at any time during which the Leverage Ratio (at the
time of and immediately after giving effect to such Disposition) is less than or equal to
3.50:1.00, (A) for fair market value and the consideration received consists of no less than
80% in cash, (B) the Net Disposition Proceeds received from such Disposition, together with
the Net Disposition Proceeds of all other assets Disposed of pursuant to this clause in any
Fiscal Year, does not exceed (individually or in the aggregate) $30,000,000 in such Fiscal
Year and (C) the applicable portion of the Net Disposition Proceeds from such Disposition
are applied pursuant to Sections 3.1.1 and 3.1.2




     (d) a Disposition of assets by (i) the Company to an Obligor that guarantees all of the
Obligations, (ii) an Obligor that guarantees all of the Obligations to the Company or
another Obligor that guarantees all of the Obligations, (iii) a Designated Borrower to an
Obligor that guarantees all of the Obligations of such Designated Borrower or by such
Obligor to such Designated Borrower;




     (e) made by the Company or any of its Subsidiaries to any Person who is not a
Subsidiary of the Company or is an SPV pursuant to the Permitted Receivables Programs;




     (f) a Specified Disposition;




     (g) arises out of a closing, cessation of use or sale of the Niagara Falls Property; or




     (h) a Disposition of certain ancillary property rights, as discussed with the
Administrative Agents; provided that the applicable portion of the Net Disposition Proceeds
from such Disposition are applied pursuant to Sections 3.1.1 and 3.1.2.



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     Section 7.2.9 Modification of Certain Agreements. The Company will not, and will not permit any of its Subsidiaries to, consent to any
amendment, supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in:




     (a) any of the Material Debt Documents, other than any amendment, supplement, waiver or
modification which (i) extends the date or reduces the amount of any required repayment,
prepayment or redemption of the principal of such Material Debt, (ii) reduces the rate or
extends the date for payment of principal, interest, premium (if any) or fees payable on
such Material Debt or (iii) makes the covenants, events of default or remedies in such
Material Debt Documents less restrictive on the Company or its Subsidiaries, as the case may
be; or




     (b) the Organic Documents of the Company or any of its Subsidiaries, if the result
would have an adverse effect on the rights or remedies of any Secured Party.



     Section 7.2.10 Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, enter into or cause
or permit to exist any arrangement, transaction or contract (including for the purchase, lease or
exchange of property or the rendering of services) with any of its other Affiliates, unless such
arrangement, transaction or contract (i) is on fair and reasonable terms no less favorable to the
Company or such Subsidiary than it could obtain in an arm’s-length transaction with a Person that
is not an Affiliate and (ii) is of the kind which would be entered into by a prudent Person in the
position of the Company or such Subsidiary with a Person that is not one of its Affiliates.



     Section 7.2.11 Restrictive Agreements, etc. The Company will not, and will not permit any of its Subsidiaries to, enter into any
agreement prohibiting:




     (a) the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




     (b) the ability of any Obligor to amend or otherwise modify any Loan Document; or




     (c) the ability of any Subsidiary to make any payments, directly or indirectly, to the
Company, including by way of dividends, advances, repayments of loans, reimbursements of
management and other intercompany charges, expenses and accruals or other returns on
investments.


The foregoing prohibitions shall not apply to restrictions contained (i) in any Loan Document, (ii)
in the case of clause (a), any agreement governing any Indebtedness permitted by clause
(e) of Section 7.2.2 as to the assets financed with the proceeds of such Indebtedness,
or (iii) in the case of clauses (a) and (c), any agreement of a Foreign Subsidiary
governing the Indebtedness permitted by clause (f)(i) of Section 7.2.2.




     Section 7.2.12 Sale and Leaseback. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly
enter into any agreement or arrangement providing for the sale or transfer by it of any property
(now owned or hereafter acquired) to a Person and the subsequent lease or rental of such property
or other similar property from such Person except for agreements providing for the sale or transfer
of property with a value not exceeding $15,000,000 in the aggregate over the term of this
agreement, as long as the lease or rental thereof is entered into within 90 days of such sale or
transfer.



     Section 7.2.13 Foreign Distributions and Investments. In the event that the Company and its Subsidiaries shall maintain more than
$50,000,000 of cash and
Cash Equivalent Investments outside of the United States (excluding any restricted cash that serves
as collateral in favor of lessors of the



83









 




Company’s and its Subsidiaries’ metal leases and other
cash collateral), the Company will not, and will not permit any of its Subsidiaries to, invest or
otherwise distribute any amounts outside of the United States from within the United States
(whether from the proceeds of Revolving Loans or otherwise) if after giving effect to such
distribution and the use of proceeds thereof, the Company and its Subsidiaries would have more than
$50,000,000 of cash and Cash Equivalent Investments outside the United States.




ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1 Listing of Events of Default. Each of the following events or occurrences described in this Article shall constitute an
“Event of Default”.



     Section 8.1.1 Non-Payment of Obligations. The Borrowers shall default in the payment or prepayment when due of:




     (a) any principal of any Loan, or any Reimbursement Obligation or any deposit of cash
for collateral purposes pursuant to Section 2.7.4; or




     (b) any interest on any Loan or any fee described in Article III or any other
monetary Obligation, and such default shall continue unremedied for a period of three
Business Days after such amount was due.



     Section 8.1.2 Breach of Warranty. Any representation or warranty of any Obligor made or deemed to be made in any Loan
Document (including any certificates delivered pursuant to Article V) is or shall be
incorrect when made or deemed to have been made in any material respect.



     Section 8.1.3 Non-Performance of Certain Covenants and Obligations. The Borrowers shall default in the due performance or observance of any of its obligations
under Section 7.1.1, Section 7.1.7, Section 7.1.9 or Section 7.2.



     Section 8.1.4 Non-Performance of Other Covenants and Obligations. Any Obligor shall default in the due performance and observance of any other agreement
contained in any Loan Document executed by it, and such default shall continue unremedied for a
period of 30 days after the earlier to occur of (i) notice thereof given to the Company by any
Agent or any Lender or (ii) the date on which any Obligor has knowledge of such default.



     Section 8.1.5 Default on Other Indebtedness. A default shall occur in the payment of any amount when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any principal or stated amount of, or
interest or fees on, any Indebtedness (other than Indebtedness described in Section 8.1.1)
of the Company or any of its Subsidiaries or any other Obligor having a principal or stated amount,
individually or in the aggregate, in excess of $7,500,000 (or the Dollar Equivalent thereof), or a
default shall occur in the performance or observance of any obligation or condition with respect to
such Indebtedness if the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent for such holders, to
cause or declare such Indebtedness to become due and payable or to require such Indebtedness to be
prepaid, redeemed, purchased or defeased, or require an offer to purchase or defease such
Indebtedness to be made, prior to its expressed maturity.



     Section 8.1.6 Judgments. Any judgment or order for the payment of money individually or in the aggregate in excess
of $7,500,000 (or the Dollar Equivalent thereof) (exclusive of any amounts fully



84









 




covered by
insurance (less any applicable deductible) and as to which the insurer has acknowledged its
responsibility to cover such judgment or order) shall be rendered against the Company or any of its
Subsidiaries or any other Obligor and such judgment shall not have been vacated or discharged or
stayed or bonded pending appeal within 30 days after the entry thereof or enforcement proceedings
shall have been commenced by any creditor upon such judgment or order.




     Section 8.1.7 Pension Plans. Any of the following events shall occur with respect to any Pension Plan:




     (a) the institution of any steps by the Company, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such termination, the
Company or any such member could be required to make a contribution to such Pension Plan, or
could reasonably expect to incur a liability or obligation to such Pension Plan, in excess
of $5,000,000; or




     (b) a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under section 302(f) of ERISA.



     Section 8.1.8 Change in Control. Any Change in Control shall occur.



     Section 8.1.9 Bankruptcy, Insolvency, etc. The Company, any of its Subsidiaries or any other Obligor shall:




     (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any thereof, or
make a general assignment for the benefit of creditors;




     (c) in the absence of such application, consent or acquiescence in or permit or suffer
to exist the appointment of a trustee, receiver, sequestrator or other custodian for a
substantial part of the property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days; provided that the Company, each
Subsidiary and each other Obligor hereby expressly authorizes each Secured Party to appear
in any court conducting any relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;




     (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law or any
dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case
or proceeding is not-commenced by the Company, any Subsidiary or any Obligor, such case or
proceeding shall be consented to or acquiesced in by the Company, such Subsidiary or such
Obligor, as the case may be, or shall result in the entry of an order for relief or shall
remain for 60 days undismissed; provided that the Company, each Subsidiary and each Obligor
hereby expressly authorizes each Secured Party to appear in any court conducting any such
case or proceeding during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.



85









 





     Section 8.1.10 Impairment of Security, etc. Any Loan Document or any Lien granted thereunder shall (except in accordance with its
terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or any other party
shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability; or, except as permitted under any Loan Document, any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected first priority Lien.



     SECTION 8.2 Action if Bankruptcy. If any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to the Company shall occur, the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be and become
immediately due and payable, without notice or demand to any Person and each Obligor shall
automatically and immediately be obligated to Cash Collateralize all Letter of Credit Outstandings.



     SECTION 8.3 Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (a)
through (d) of Section 8.1.9 with respect to the Borrowers) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Administrative Agents, upon the
direction of the Required Lenders, shall by notice
to the Company declare all or any portion of the outstanding principal amount of the Loans and
other Obligations (including Reimbursement Obligations) to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment, and/or, as the case may
be, the Commitments shall terminate and the Borrowers shall automatically and immediately be
obligated to Cash Collateralize all Letter of Credit Outstandings.



ARTICLE IX

THE AGENTS




     SECTION 9.1 Actions. Each Revolving Loan Lender hereby appoints PNC Bank as its Revolving Loan Administrative
Agent under and for purposes of each Loan Document, each Term Loan Lender hereby appoints CS as its
Term Loan Administrative Agent under and for purposes of each Loan Document, and each Lender hereby
appoints National City as its Collateral Agent under and for purposes of each Loan Document. Each
Lender authorizes such Agent to act on behalf of such Lender under each Loan Document and, in the
absence of other written instructions from the Required Lenders received from time to time by such
Agent (with respect to which each Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel in order to avoid contravention of applicable law),
to exercise such powers hereunder and thereunder as are specifically delegated to or required of
such Agent by the terms hereof and thereof, together with such powers as may be incidental thereto
(including the release of Liens on assets Disposed of in accordance with the terms of the Loan
Documents). Each Lender hereby indemnifies (which indemnity shall survive any termination of this
Agreement) each Agent, pro rata according to such Lender’s proportionate Total Exposure Amount,
from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted
against, such Agent in any way relating to or arising out of any Loan Document, (including
attorneys’ fees), and as to which such Administrative Agent is not reimbursed by the Borrowers;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from such Agent’s gross negligence or
willful misconduct. No Agent shall be required to take any action under any Loan Document, or to
prosecute or defend any suit in respect of any Loan Document, unless it is indemnified hereunder to
its satisfaction. If any indemnity in favor of any Agent shall be or become, in



86









 




such Agent’s
determination, inadequate, Agent may call for additional indemnification from the Lenders and cease
to do the acts indemnified against hereunder until such additional indemnity is given.




     SECTION 9.2 Funding Reliance, etc.





     (a) Unless the applicable Administrative Agent shall have been notified in writing by
any Lender by 3:00 p.m. on the Business Day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such Borrowing on the
date specified therefor, such Administrative Agent may assume that such Lender has made such
amount available to such Administrative Agent and, in reliance upon such assumption, make
available to the Borrowers a corresponding amount. If and to the extent that such Lender
shall not have made such amount available to such Administrative Agent, such Lender and the
Borrowers severally agree to repay such Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such
Administrative Agent made such amount available to the Borrowers to the date such
amount is repaid to such Administrative Agent, at the interest rate applicable at the time
to Loans comprising such Borrowing (in the case of the Borrowers) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which such amount
has not been repaid), and thereafter at the interest rate applicable to Loans comprising
such Borrowing.




     (b) Unless the applicable Administrative Agent shall have been notified in writing
prior to the time at which any payment hereunder is due to such Administrative Agents for
the account of the Secured Parties hereunder that the Borrowers will not make such payment,
such Administrative Agent may assume that the Borrowers have made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Secured
Parties its share of the amount due. In such event, if the Borrowers have not in fact made
such payment, then each of the Secured Parties severally agrees to repay to the applicable
Administrative Agent forthwith on demand the amount so distributed to such Secured Party, in
immediately available funds 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 such Administrative
Agent, at the Federal Funds Rate (for the first two Business Days after which such amount
has not been repaid), and thereafter at the interest rate applicable to the Loans which were
repaid.



     SECTION 9.3 Exculpation. No Agent nor any of its directors, officers, employees or agents shall be liable to any
Secured Party for any action taken or omitted to be taken by it under any Loan Document, or in
connection therewith, except for its own willful misconduct or gross negligence, nor responsible
for any recitals or warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of any Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by any Obligor of its Obligations. Any such inquiry which may be made
by an Agent shall not obligate it to make any further inquiry or to take any action. Each Agent
shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which such Agent believes to be genuine and to have been
presented by a proper Person.



     SECTION 9.4 Successor. Any of the Agents may resign as such at any time upon at least 30 days’ prior notice to the
other Agents, the Borrowers and all Lenders. If an Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Agent which shall thereupon become the applicable
Agent hereunder. If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent’s giving notice of
resignation, then such retiring Agent may, on behalf of the Lenders, appoint a successor



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Agent,
which shall be one of the Lenders or a commercial banking institution organized under the laws of
the United States (or any State thereof) or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least $250,000,000; provided
that if such retiring Agent is unable to find a commercial banking institution which is willing to
accept such appointment and which meets the qualifications set forth in above, the retiring Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall assume and perform
all of the duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring Agent’s resignation
hereunder as the an Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under the Loan Documents, and
Section 10.3 and Section 10.4 shall continue to inure to its benefit.




     SECTION 9.5 Loans by the Agents. The Agents shall have the same rights and powers with respect to (a) the Credit Extensions
made by it or any of its Affiliates, and (b) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not an Agent. CS, National City, PNC Bank and
their Affiliates may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrowers or any Subsidiary or Affiliate of the Borrowers as if such Agent were
not an Agent hereunder.



     SECTION 9.6 Credit Decisions. Each Lender acknowledges that it has, independently of each Agent and each other Lender,
and based on such Lender’s review of the financial information of the Borrowers, the Loan Documents
(the terms and provisions of which being satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed appropriate, made its own credit decision
to extend its Commitments. Each Lender also acknowledges that it will, independently of each Agent
and each other Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as to exercising or
not exercising from time to time any rights and privileges available to it under the Loan
Documents. Each Lender acknowledges that the Obligations are secured
by Liens that are pari passu
with the Liens securing the Indebtedness and other obligations under the Indentures.



     SECTION
9.7 Copies, etc. Each Administrative Agent shall give prompt notice to each Lender of each notice or request
required or permitted to be given to such Administrative Agent by the Borrowers pursuant to the
terms of the Loan Documents (unless concurrently delivered to the Lenders by the Borrower). Each
Administrative Agent will distribute to each Lender each document or instrument received for its
account and copies of all other communications received by such Administrative Agent from the
Borrowers for distribution to the Lenders by such Administrative Agent in accordance with the terms
of the Loan Documents.



     SECTION 9.8 Reliance by the Agents. The Agents shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person, and upon advice and
statements of legal counsel, independent accountants and other experts selected by such Agent. As
to any matters not expressly provided for by the Loan Documents, the Agents shall in all cases be
fully protected in acting, or in refraining from acting, thereunder in accordance with instructions
given by the Required Lenders or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties. For purposes of applying amounts in accordance with this



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Section,
the Agents shall be entitled to rely upon any Secured Party that has entered into a Rate Protection
Agreement with any Obligor for a determination (which such Secured Party agrees to provide or cause
to be provided upon request of the Administrative Agent) of the outstanding Obligations owed to
such Secured Party under any Rate Protection Agreement. Unless it has
actual knowledge evidenced by way of written notice from any such Secured Party or the Company
to the contrary, the Administrative Agents, in acting in such capacity under the Loan Documents,
shall be entitled to assume that no Rate Protection Agreements or Obligations in respect thereof
are in existence or outstanding between any Secured Party and any Obligor.




     SECTION 9.9 Defaults. No Agent shall be deemed to have knowledge or notice of the occurrence of a Default unless
an Administrative Agent has received a written notice from a Lender or the Company specifying such
Default and stating that such notice is a “Notice of Default”. In the event that an Administrative
Agent receives such a notice of the occurrence of a Default, such Administrative Agent shall give
prompt notice thereof to the Lenders. The Agents shall (subject to Section 10.1 and the
Collateral Sharing Agreement) take such action with respect to such Default as shall be directed by
the Required Lenders; provided that subject to the Collateral Sharing Agreement, unless and until
the Agents shall have received such directions, the Agents may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Secured Parties except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all Lenders.



     SECTION 9.10 Posting of Approved Electronic Communications.





     (a) The Borrowers hereby agree, unless directed otherwise by an Administrative Agent or
unless the electronic mail address referred to below has not been provided by such
Administrative Agent to the Borrowers, that it will, or will cause its Subsidiaries to,
provide to such Administrative Agent all information, documents and other materials that it
is obligated to furnish to such Administrative Agent pursuant to the Loan Documents or to
the Lenders under Section 7.1.1, including all notices, requests, financial
statements, financial and other reports, certificates and other information materials, but
excluding any such communication that (i) is or relates to a Borrowing Request, a
Continuation/Conversion Notice or an Issuance Request, (ii) relates to the payment of any
principal or other amount due under this Agreement prior to the scheduled date therefor,
(iii) provides notice of any Default under this Agreement or any other Loan Document or (iv)
is required to be delivered to satisfy any condition precedent to the effectiveness of this
Agreement and/or any Borrowing or other extension of credit hereunder (all such non-excluded
communications being referred to herein collectively as “Communications”), by
transmitting the Communications in an electronic/soft medium that is properly identified in
a format acceptable to the Administrative Agents to an electronic mail address as directed
by such Administrative Agent. In addition, the Company agrees, and agrees to cause its
Subsidiaries, to continue to provide the Communications to the Administrative Agents or the
Lenders, as the case may be, in the manner specified in the Loan Documents but only to the
extent requested by such Administrative Agent.




     (b) The Borrowers further agree that the Administrative Agents may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).




     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE
PLATFORM AND



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EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED
PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
INDEMNIFIED PARTIES HAVE ANY LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR
DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY OBLIGOR’S OR THE ADMINISTRATIVE AGENTS’
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF
ANY INDEMNIFIED PARTY IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.




     (d) Each Administrative Agent agrees that the receipt of the Communications by such
Administrative Agent at its e-mail address delivered to the Borrowers shall constitute
effective delivery of the Communications to such Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees to notify the applicable Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s e-mail address to
which the foregoing notice may be sent by electronic transmission and that the foregoing
notice may be sent to such e-mail address.




     (e) Nothing herein shall prejudice the right of the Administrative Agents or any Lender
to give any notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.



     SECTION 9.11 Joint Lead Arrangers, Documentation Agent and Syndication Agent. Notwithstanding anything else to the contrary contained in this Agreement or any other Loan
Document, the Joint Lead Arrangers, Joint Bookrunners, the Documentation Agent and the Syndication
Agent, in their respective capacities as such, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document nor any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against such Person in such
capacity. Each Joint Lead Arranger shall at all times have the right to receive current copies of
the Registers and any other information relating to the Lenders and the Loans that they may request
from the Administrative Agents.



ARTICLE X

MISCELLANEOUS PROVISIONS




     SECTION 10.1 Waivers, Amendments, etc.
The provisions of each Loan Document (other than Rate Protection Agreements, Letters of
Credit or the Fee Letter, which shall be modified only in accordance with their respective terms)
may from time to time be amended, modified or waived, if such amendment, modification or waiver is
in writing and consented to by the Company and the Required Lenders; provided that no such
amendment, modification or waiver shall:



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     (a) modify clause (b) of Section 4.7 or Section 4.8 (as it
relates to sharing of payments) or this Section, in each case, without the consent of all
Lenders;




     (b) increase the aggregate amount of any Credit Extensions required to be made by a
Lender pursuant to its Commitments, extend the final Revolving Loan Commitment Termination
Date of Credit Extensions made (or participated in) by a Lender or extend the final Stated
Maturity Date for any Lender’s Loan, in each case without the consent of such Lender (it
being agreed, however, that any vote to rescind any acceleration made pursuant to
Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and
other Obligations shall only require the vote of the Required Lenders);




     (c) reduce (by way of forgiveness), the principal amount of or reduce the rate of
interest on any Lender’s Loan, reduce any fees described in Article III payable to
any Lender or extend the date on which interest or fees are payable in respect of such
Lender’s Loans, in each case without the consent of such Lender (provided that the vote of
Required Lenders shall be sufficient to waive the payment, or reduce the increased portion,
of interest accruing under Section 3.2.2);




     (d) reduce the percentage set forth in the definition of “Required Lenders” or modify
any requirement hereunder that any particular action be taken by all Lenders without the
consent of all Lenders;




     (e) increase the Stated Amount of any Letter of Credit unless consented to by the
Issuer of such Letter of Credit;




     (f) except as otherwise expressly provided in a Loan Document, release (i) the
Borrowers from their Obligations under the Loan Documents or any Guarantor from its
obligations under a Guaranty or (ii) all or substantially all of the collateral under the
Loan Documents, in each case without the consent of all Lenders;




     (g) amend, modify or waive after the Closing Date any condition precedent set forth in
Section 5.2 (or any Default to the extent such amendment, waiver or other
modification would enable the Borrowers to satisfy clause (b) of Section
5.2.1) unless consented to by the Required Revolving Lenders; or




     (h) affect adversely the interests, rights or obligations of any Agent (in its capacity
as such Agent), any Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) unless consented to by such Person, as the case may be.


No failure or delay on the part of any Secured Party in exercising any power or right under any
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle it to any notice
or demand in similar or other circumstances. No waiver or approval by any Secured Party under any
Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.




     SECTION 10.2 Notices; Time. Except as otherwise provided in clause (d) of Section 9.10 All notices and
other communications provided under each Loan Document shall be in writing or by facsimile and
addressed, delivered or transmitted, if to the Borrowers, the Agents, a Lender or an Issuer,



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to the
applicable Person at its address or facsimile number set forth on Schedule II hereto or set
forth in the Lender Assignment Agreement, or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter. Electronic mail and
Internet and intranet websites may be used only to distribute routine communications by the
Administrative Agents to the Lenders, such as financial statements and other information as
provided in Section 7.1.1 and for the distribution and execution of Loan Documents for
execution by the parties thereto, and may not be used for any other purpose. The parties hereto
agree that delivery of an executed counterpart of a signature page to this Agreement and each other
Loan Document by facsimile (or electronic transmission) shall be effective as delivery of an
original executed counterpart of this Agreement or such other Loan Document. Unless otherwise
indicated, all references to the time of a day in a Loan Document shall refer to New York time.




     SECTION 10.3 Payment of Costs and Expenses. The Borrowers agree to pay on demand all expenses of the Agent (including the reasonable
fees and out-of-pocket expenses of Latham & Watkins LLP, counsel to the Agents and of local
counsel, if any, who may be retained by or on behalf of the Agents) in connection with:




     (a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to any Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated;




     (b) the actual costs of filing or recording of any Loan Document (including the Filing
Statements) and all amendments, supplements, amendment and restatements and other
modifications to any thereof, searches made following the Closing Date in jurisdictions
where Filing Statements (or other documents evidencing Liens in favor of the Secured
Parties) have been recorded and any and all other documents or instruments of further
assurance required to be filed or recorded by the terms of any Loan Document; and




     (c) the preparation and review of the form of any document or instrument relevant to
any Loan Document.


The Borrowers further agree to pay, and to save each Secured Party harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution or delivery of each
Loan Document, the Credit Extensions or the issuance of the Notes. The Borrowers also agree to
reimburse the Agents and each Lender upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys’ fees and legal expenses of counsel to the Agents) incurred by the
Agents or such Lender in connection with (x) the negotiation of any restructuring or “work-out”
with the Borrowers, whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.




     SECTION 10.4 Indemnification. In consideration of the execution and delivery of this Agreement by each Secured Party, the
Borrowers hereby indemnify, exonerate and hold each Secured Party, each Joint Lead Arranger, the
Documentation Agent, the Syndication Agent and each of their respective officers, directors,
employees and agents (collectively, the “Indemnified Parties”) free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and
expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including reasonable attorneys’
fees and disbursements, whether incurred in connection with actions between or among the



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parties
hereto or the parties hereto and third parties (collectively, the “Indemnified
Liabilities”), incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to:





     (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension, including all Indemnified Liabilities
arising in connection with the Transaction;




     (b) the entering into and performance (including the issuance of Letters of Credit) of
any Loan Document by any of the Indemnified Parties (including any action brought by or on
behalf of the Company as the result of any determination by the Required Lenders pursuant to
Article V not to fund any Credit Extension, provided that any such action is
resolved in favor of such Indemnified Party);




     (c) any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of the Capital
Securities or assets of any Person, whether or not an Indemnified Party is party thereto;




     (d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned or operated by any Obligor
or any Subsidiary thereof of any Hazardous Material (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, such Obligor or Subsidiary;
or




     (f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control of, such
Obligor or such Subsidiary);


except for Indemnified Liabilities arising for the account of a particular Indemnified Party by
reason of the relevant Indemnified Party’s gross negligence or willful misconduct. In no event
shall the Indemnified Parties have any liability to any Obligor, any Lender or any other Person for
incidental or consequential damages of any kind as a result of, or arising out of, or relating to
any of the items described in clause (a) through (f) above. Each Obligor and its
successors and assigns hereby waive, release and agree not to make any claim or bring any cost
recovery action against, any Indemnified Party under CERCLA or any state equivalent, or any similar
law now existing or hereafter enacted. It is expressly understood and agreed that to the extent
that any Indemnified Party is strictly liable under any Environmental Laws, each Obligor’s
obligation to such Indemnified Party under this indemnity shall likewise be without regard to fault
on the part of any Obligor with respect to the violation or condition which results in liability of
an Indemnified Party. If and to the extent that the foregoing undertaking may
be unenforceable for any reason, each Obligor agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.




     SECTION 10.5 Survival. The obligations of the Borrowers under Sections 4.3, 4.4, 4.5,
4.6, 10.3 and 10.4, and the obligations of the Lenders under Section
9.1, shall in each case survive any assignment from one Lender to another (in the case of
Sections 10.3 and 10.4) and the occurrence of the Termination Date. The
representations and warranties made by each Obligor in each Loan Document shall survive the
execution and delivery of such Loan Document.




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     SECTION 10.6 Severability. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
of such Loan Document or affecting the validity or enforceability of such provision in any other
jurisdiction.



     SECTION 10.7 Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.



     SECTION 10.8 Execution in Counterparts, Effectiveness, etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be an original and all
of which shall constitute together but one and the same agreement. This Agreement shall become
effective on the date first above written when counterparts hereof executed on behalf of the
Borrowers, the Administrative Agents and each Lender (or notice thereof satisfactory to the
Administrative Agents), shall have been received by the Administrative Agents.



     SECTION 10.9 Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER THAN THE
LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS
OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98—INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS NOT GOVERNED BY THE
ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter thereof and supersede any
prior agreements, written or oral, with respect thereto.



     SECTION 10.10 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrowers may not assign or transfer
its rights or obligations hereunder without the consent of all Lenders.



     SECTION 10.11 Sale and Transfer of Credit Extensions; Participations in Credit
Extensions; Notes. Each Lender may assign, or sell participations in, its Loans, Letters of
Credit and Commitments to one or more other Persons in accordance with the terms set forth below.




     (a) Any Lender may, with the consent of (x) the applicable Administrative Agent (such
consent not to be unreasonably withheld or delayed); provided that such consent shall not be
required for assignments to an Affiliate of a Lender or an Approved Fund, and (y) each
Issuer in the case of any assignment of a Revolving Loan Commitment (such consent not to be
unreasonably withheld or delayed), assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion of its
Commitments or Loans at the time owing to it); provided that:




     (i) the aggregate amount of the Commitments (which for this purpose includes
Loans outstanding thereunder), or principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the



94









 







Lender Assignment Agreement with respect to such assignment is delivered to such
Administrative Agent) shall not be less than $1,000,000, unless (A) such
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to be unreasonably
withheld or delayed); (B) such assignment is an assignment of the entire remaining
amount of the assigning Lender’s Commitments or Loans at the time owing to it, (C)
such assignment is an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, (D) such assignment is an assignment during
the Primary Syndication or (E) such assignment is to one or more Eligible Assignees
managed by an Affiliate of such Eligible Assignee(s) and the aggregate amount of
such assignments is not less than $1,000,000;




     (ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans, and/or the Commitments assigned, except that this clause (ii)
shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate tranches on a non-pro rata  basis; and




     (iii) the parties to each assignment shall (A) electronically execute and
deliver to the applicable Administrative Agent a Lender Assignment Agreement via an
electronic settlement system acceptable to such Administrative Agent (an
“ESS”) or (B) with the consent of the applicable Administrative Agent,
manually execute and deliver to such Administrative Agent a Lender Assignment
Agreement, together with, in either case, a processing and recordation fee of $3,500
(which fee may be waived or reduced in the sole discretion of such Administrative
Agent); provided that only one processing and recordation fee of $3,500 shall be
required to be paid in connection with the simultaneous assignment by a Lender to
multiple Approved Funds of such Lender, and if the Eligible Assignee is not already
a Lender, administrative details information with respect to such Eligible Assignee
and applicable tax forms.




     (b) Subject to acceptance and recording thereof by the applicable Administrative Agent
pursuant to clause (c), from and after the effective date specified in each Lender
Assignment Agreement, (i) the Eligible Assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Lender Assignment Agreement, have the rights and
obligations of a Lender under this Agreement, and (ii) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Lender Assignment Agreement, subject
to Section 10.5, be released from its obligations under this Agreement (and, in the
case of a Lender Assignment Agreement 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 any provisions of this Agreement which by their
terms survive the termination of this Agreement). If the consent of the Company to an
assignment or to an Eligible Assignee is required hereunder (including a consent to an
assignment which does not meet the minimum assignment thresholds specified in this Section),
the Company shall be deemed to have given its consent five Business Days after the date
notice thereof has been delivered by the assigning Lender (through the Administrative Agents
or an ESS) unless such consent is expressly refused by the Company prior to such fifth day.




     (c) The Administrative Agents shall record each assignment made in accordance with this
Section in the applicable Register pursuant to clause (a) of Section 2.8.
The Registers shall be available for inspection by the Borrowers and any Lender, at any
reasonable time upon reasonable prior notice to the Administrative Agents.



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     (d) Any Lender may, without the consent of, or notice to, any Person, sell
participations to one or more Persons (other than Ineligible Assignees) (a
“Participant”) in all or a portion of such Lender’s rights or obligations under the
Loan Documents (including all or a portion of its Commitments or the Loans owing to it);
provided that (i) such Lender’s obligations under the Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Agents and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under the Loan Documents. Any agreement or instrument pursuant to
which a Lender sells a participation shall provide that such Lender shall retain the sole
right to enforce the rights and remedies of a Lender under 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, take any action of the type described in clauses (a) through
(d) or clause (f) of Section 10.1 with respect to Obligations
participated in by that Participant. Subject to clause (f), the Borrowers agrees
that each Participant shall be entitled to the benefits of Sections 4.3,
4.4, 4.5, 4.6, 7.1.1, 10.3 and 10.4 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
clause (c). To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 4.9 as though it were a Lender, but only if such
Participant agrees to be subject to Section 4.8 as though it were a Lender.




     (e) A Participant shall not be entitled to receive any greater payment under
Section 4.3, 4.4, 4.5, 4.6, 10.3 or 10.4
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 Company’s prior written consent. A Participant that would be a
Non-U.S. Secured Party if it were a Lender shall not be entitled to the benefits of
Section 4.6 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
the requirements set forth in Section 4.6 as though it were a Lender. Any Lender
that sells a participating interest in any Loan, Commitment or other interest to a
Participant under this Section shall indemnify and hold
harmless the Borrowers and the Agents from and against any taxes, penalties, interest
or other costs or losses (including reasonable attorneys’ fees and expenses) incurred or
payable by the Borrowers or the Administrative Agents as a result of the failure of the
Borrowers or the Administrative Agents to comply with its obligations to deduct or withhold
any Taxes from any payments made pursuant to this Agreement to such Lender or the
Administrative Agents, as the case may be, which Taxes would not have been incurred or
payable if such Participant had been a Non-U.S. Lender that was entitled to deliver to the
Borrowers, the applicable Administrative Agent or such Lender, and did in fact so deliver, a
duly completed and valid Form W-8BEN or W-8ECI (or applicable successor form) entitling such
Participant to receive payments under this Agreement without deduction or withholding of any
United States federal taxes.




     (f) 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; 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.




     (g) Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle (a “SPC”),
identified as such in writing from time to time by the Granting Lender to the Administrative
Agents and the Company, the option to provide to the Company all or any part of any Loan
that such Granting Lender would otherwise be obligated to make to the Company pursuant to
this Agreement;



96









 







provided that (x) nothing herein shall constitute a commitment by any SPC to
make any Loans and (y) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary contained in this clause,
any SPC may (i) with notice to, but without the prior written consent of, the Company or the
Administrative Agents and without paying any processing fee therefor, assign all or a
portion of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Company, and the Administrative Agents) providing
liquidity and/or credit support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This Section may not be
amended without the written consent of the SPC. The Company acknowledges and agrees,
subject to the next sentence, that, to the fullest extent permitted under applicable law,
each SPC, for purposes of Sections 4.3, 4.4, 4.5, 4.6,
4.8, 4.9, 10.3 and 10.4 shall be considered a Lender. The
Borrowers shall not be required to pay any amount under Sections 4.3, 4.4,
4.5, 4.6, and 10.4 that is greater than the amount which it would
have been required to pay had no grant been made by a Granting Lender to an SPC.



     SECTION 10.12 Other Transactions. Nothing contained herein shall preclude the Administrative Agents, any Issuer or any other
Lender from engaging in any transaction, in addition to those contemplated by the Loan Documents,
with any Borrower or any of its Affiliates in which such Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.



     SECTION 10.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENTS, THE LENDERS, ANY ISSUER OR THE BORROWERS IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT
AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENTS’ OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND, AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH PERSON PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONAL, THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS. THE
BORROWERS IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN
SECTION 10.2. THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY



97









 







SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWERS HAVE OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWERS HEREBY IRREVOCABLY WAIVE TO THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS.



     SECTION 10.14 Waiver of Jury Trial. EACH ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH ADMINISTRATIVE
AGENT, SUCH LENDER, SUCH ISSUER OR EACH BORROWER IN CONNECTION THEREWITH. THE BORROWERS
ACKNOWLEDGE AND AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENTS, EACH LENDER AND EACH ISSUER
ENTERING INTO THE LOAN DOCUMENTS.



     SECTION 10.15 Patriot Act. Each Lender that is subject to Section 326 of the Patriot Act and/or the Administrative
Agents and/or the Joint Lead Arrangers (each of the foregoing acting for themselves and not acting
on behalf of any of the Lenders) hereby notify the Borrowers that pursuant to the requirements of
the Patriot Act, it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the Borrowers and other information
that will allow such Lender, the Administrative Agents or the Joint Lead Arrangers, as the case may
be, to identify the Borrowers in accordance with the Patriot Act.



     SECTION 10.16 Judgment Currency. The Obligations of each Obligor in respect of any
sum due to any Secured Party under or in respect of any Loan Document shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency in which such sum
was originally denominated (the “Original Currency”), be discharged only to the extent that
on the Business Day following receipt by such Secured Party or any sum adjudged to be so due in the
Judgment Currency, such Secured Party, in accordance with normal banking procedures, purchases the
Original Currency with the Judgment Currency. If the amount of Original Currency so purchased is
less than the sum originally due to such Secured Party, the Borrowers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender, such Secured Party, as
the case may be, against such loss, and if the amount of Original Currency so purchased exceeds the
sum originally due to such Secured Party, as the case may be, such Secured Party, as the case may
be, agrees to remit such excess to the Borrowers.



     SECTION 10.17 Confidentiality.




     (a) Subject to the provisions of clause (b) of this Section, each Lender agrees
that it will follow its customary procedures in an effort not to disclose without the prior
consent of the Company (other than to its employees, auditors, advisors or counsel or to
another Lender if the Lender or such Lender’s holding or parent company in its sole
discretion determines that any such party should have access to such information, provided
such Persons shall be subject to the provisions of this Section to the same extent as such
Lender) any confidential information which



98









 







is now or in the future furnished pursuant to
this Agreement or any other Loan Document; provided that any Lender may disclose any such
information (i) as has become generally available to the public other than by virtue of a
breach of this clause by the respective Lender or any other Person to whom such Lender has
provided such information as permitted by this Section, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal, state,
provincial or Federal regulatory body having or claiming to have jurisdiction over such
Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their successors, (iii)
as may be required or appropriate in respect to any summons or subpoena or in connection
with any litigation, (iv) in order to comply with any law, order, regulation or ruling
applicable to such Lender, (v) to the Administrative Agents, (vi) to any pledgee referred to
in clause (f) of Section 10.11 or any prospective or actual transferee or
participant in connection with any contemplated transfer or participation of any of the
Notes or Commitments or any interest therein by such Lender;
provided that such prospective
transferee agrees to be bound by the confidentiality provisions contained in this Section,
(vii) to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the provisions
of this Section) and (viii) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender. For purposes of this Section 10.17, all
information furnished to the Lenders by the Company or any of its Affiliates shall be deemed
public information unless prior to or concurrently with the delivery of such information,
the Lenders have been notified otherwise by the Company or such Affiliate.




     (b) The Borrowers hereby acknowledge and agree that each Lender may share with any of
its Affiliates, and such Affiliates may share with such Lender, any information related to
the Company or any of its Subsidiaries, provided such Persons shall be subject to the
provisions of this Section to the same extent as such Lender.


Notwithstanding the foregoing paragraphs of this Section, any party to this Agreement (and each
Affiliate, director, officer, employee, agent or representative of the foregoing or such Affiliate)
may disclose to any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated herein and all materials of any kind (including opinions
or other tax analyses) that are provided to such party relating to such tax treatment or tax
structure. The foregoing language is not intended to waive any confidentiality obligations
otherwise applicable under this Agreement except with respect to the information and materials
specifically referenced in the preceding sentence. This authorization does not extend to
disclosure of any other information, including (a) the identity of participants or potential
participants in the transactions contemplated herein, (b) the existence or status of any
negotiations, or (c) any financial, business, legal or personal information of or regarding a party
or its affiliates, or of or regarding any participants or potential participants in the
transactions contemplated herein (or any of their respective affiliates), in each case to the
extent such other information is not related to the tax treatment or tax structure of the
transactions contemplated herein.




     SECTION 10.18 Counsel Representation. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS BEEN REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT, AND THAT ANY RULE
OR CONSTRUCTION OF LAW ENABLING SUCH BORROWER TO ASSERT THAT ANY AMBIGUITIES OR INCONSISTENCIES IN
THE DRAFTING OR PREPARATION OF THE TERMS OF THIS AGREEMENT SHOULD DIMINISH ANY RIGHTS OR REMEDIES
OF THE ADMINISTRATIVE AGENTS OR THE OTHER SECURED PARTIES ARE HEREBY WAIVED BY SUCH BORROWER.



99









 





     SECTION 10.19 Effect of Amendment and Restatement of the Existing Credit Agreement.
On the Second Restatement Effective Date, the Existing Credit Agreement shall be amended and
restated in its entirety. The parties hereto acknowledge and agree that (a) this Agreement and the
other Loan Documents, whether executed and delivered in connection herewith or otherwise, do not
constitute a novation or termination of the “Obligations” (as defined in the Existing Credit
Agreement) under the Existing Credit Agreement as in effect prior to the Second Restatement
Effective Date and which remain outstanding, (b) the “Obligations” are in all respects continuing
(as amended and restated hereby and which are hereinafter subject to the terms herein) and (c) the
Liens as granted under the applicable Loan Documents securing payment of such “Obligations” are in
all respects continuing and in full force and effect (as assigned to the Collateral Agent for the
benefit of the Secured Parties pursuant to this Agreement and the other Loan Documents).



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





100









 








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



	 	 	 	 	 
	 	FERRO CORPORATION

 	 
	 	By:  	/s/ John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 



1000 Lakeside Avenue

Cleveland, Ohio 44114

Facsimile No.: (216) 875-7275

Attention: General Counsel





1









 





CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as the Term Loan Administrative Agent and a Lender

and on behalf of each Term Loan Lender




	 	 	 	 	 
	 	 	 
	 	By:  	                     /s/ William O’Daly
 	 
	 	 	Name:  	William O’Daly 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                     /s/ Ilya Ivashkov
 	 
	 	 	Name:  	Ilya Ivashkov 	 
	 	 	Title:  	Associate 	 
	 



Eleven Madison Avenue

New York, New York 10010-3629

Facsimile No.: (212) 325 8321

Attention: William O’Daly




 









 




PNC BANK, NATIONAL ASSOCIATION,

as the Revolving Loan Administrative Agent and on

behalf of each Revolving Loan Lender


	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Peter M. Hilton	 
	 	 	Name:  	Peter M. Hilton	 
	 	 	Title:  	Executive Vice President	 
	 



PNC First Side Center

500 First Avenue

PNC Agency Services

Pittsburgh, Pennsylvania 15219

Facsimile No.: (412) 762 8672

Attention: Lisa Pierce


1








 





	 	 	 	 	 
	 	NATIONAL CITY BANK,

as the Collateral Agent, the Issuer and a Lender

 	 
	 	By:  	/s/Robert S. Coleman
 	 
	 	 	Name:  	Robert S. Coleman 	 
	 	 	Title:  	Senior Vice President 	 
	 



629 Euclid Avenue

Cleveland, Ohio 44114

Facsimile No.: (216) 222-0103

Attention: Traci Sajewski




 









 





SCHEDULE I




DISCLOSURE SCHEDULE TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT





 











 






Disclosure Schedule to Second Amended and Restated Credit Agreement





	*	 	All previous disclosure schedules to the credit agreement and the amended and restated credit
agreement are hereby incorporated into this document, except for the disclosure schedules that are
amended and restated as set forth below.





ITEM 6.8 Existing Subsidiaries




	 	 	 
	Name of Subsidiary	 	 
	 
	 	 
	Ferro China
Holdings Inc.
	 	USA
	Zibo Ferro Performance Materials Company, Limited (70%) 
	 	Peoples Republic of China
	Ferro
Electronic Materials Inc.
	 	USA
	Ferro Finance Corporation 
	 	USA
	Ferro Color & Glass Corporation 
	 	USA
	Ferro Colores SA de CV
	 	Mexico
	Ferro
International Services Inc.
	 	USA
	Ferro
Pfanstiehl Laboratories, Inc.
	 	USA
	Ferro Pfanstiehl (Europe) Ltd.
	 	United Kingdom
	Ferro Argentina SA 
	 	Argentina
	Minera Loma Blanca SA 
	 	Argentina
	Procesadora de Boratos Argentinos SA 
	 	Argentina
	Ferro
Corporation (Australia) Pty Ltd.
	 	Australia
	Ferro Enamel do Brasil Industria e Comercio Ltda.
	 	Brazil
	Ferro
Industrial Products Ltd.
	 	Canada
	ESFEL SA (19%) 
	 	Ecuador
	Ferro Holding GmbH 
	 	Germany
	Ferro GmbH 
	 	Germany
	Ferro Magmalor GmbH 
	 	Germany
	PT Ferro Mas Dinamika (95%) 
	 	Indonesia
	Ferro Japan K.K 
	 	Japan
	Ferro Far
East Ltd.
	 	Hong Kong
	Ferro Far East Company SDN, BHD 
	 	Malaysia
	Ferro Mexicana SA de CV 
	 	Mexico
	Ferro B.V.
	 	The Netherlands
	Ferro
(Belgium) Sprl.
	 	Belgium
	FC France Acquisition Sarl 
	 	France
	Ferro Couleurs France SA 
	 	France
	PT Ferro Ceramic Colors Indonesia (59%) 
	 	Indonesia
	PT Ferro Additives Asia (75.4%) 
	 	Indonesia
	Ferro France Sarl 
	 	France
	Ferro Services Sarl 
	 	France
	Ferro Arnsberg GmbH iL 
	 	Germany
	Ferro (Italia) SrL 
	 	Italy
	Smaltochimica SrL (40%) 
	 	Italy
	Ferro (Holland) BV 
	 	The Netherlands
	Ferro Investments BV 
	 	The Netherlands
	Ferro Industrias Quimicas (Portugal) Lda 
	 	Portugal
	Ferro LLC 
	 	Russia
	Ferro (Suzhou) Performance Materials Co. Ltd.
	 	Peoples Republic of China
	Ferro Taiwan
Ltd.
	 	Republic of China
	DC-Ferro Co., Ltd. (50%) 
	 	Republic of Korea
	Ferro Spain SA 
	 	Spain
	Gardenia-Quimica SA (36%) 
	 	Spain
	Kerajet SA (19.99%) 
	 	Spain
	Ferro (Thailand) Co. Ltd.
	 	Thailand
	Ferro Cerdec (Thailand) Co. Ltd (49%) 
	 	Thailand
	Ferro de Venezuela CA (51%) 
	 	Venezuela
	Ferro (Great
Britain) Ltd.
	 	United Kingdom
	Ferro Colours (UK) Ltd. (Dormant) 
	 	United Kingdom






 









 






	 	 	 
	Name of Subsidiary	 	 
	 
	 
	Ferro Drynamels Limited (Dormant)
	 	United Kingdom
	Ferro Normandy Plastics Limited (Dormant) 
	 	United Kingdom
	Midland Coatings Limited (Dormant) 
	 	United Kingdom
	Ohio-Mississippi Corporation (Dormant) 
	 	USA
	Cataphote Contracting Company (Dormant) 
	 	USA
	The Ferro Enamel Supply Company (Dormant) 
	 	USA
	Ferro Far East, Inc. (Dormant) 
	 	USA






ITEM 6.12 Environmental Matters



See attached.





 











 







Item 6.12 Environmental Disclosures




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	6.12(i)

	 	Niagara Falls, NY
	 	Buried TENORM. When
Cookson owned the
site they buried
some silica fume in
back of the plant
that contains
TENORM. The
landfill area has
been of interest to
NRC and NYDEC.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	Hammond, IN
	 	CERCLIS list. One
of the three land
parcels (parking
lot area) at the
former Keil
Chemical site is
listed on CERCLIS
because it has a
landfill area
created by Union
Carbide when they
owned the land. No
clean up was
required due to a
low CERCLIS score.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	South Plainfield, NJ
	 	CERCLIS list. This
site was put on the
CERCLIS list in
1993 and we don’t
know why. Ferro
sold this site in
2003 and went
through a NJ ISRA
investigation.
After some limited
remediation it met
residential clean
up criteria.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),(d)

	 	Castenheira, Portugal
	 	Wastewater
treatment. Need to
upgrade wastewater
treatment plant to
meet discharge
limitations during
storm events, which
hydraulically
overload the
current treatment
system.
	 	$	360,000	 	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),
(b), (d)

	 	South Plainfield, NJ
	 	Title V Air
Permitting
Compliance. The
State of New Jersey
has notified the
Company of alleged
non-compliance with
the facility’s
Title V operating
permit. The New
Jersey Department
of Environmental
Protection (NJDEP)
informally alleged
up to $1.9MM in
liability for
alleged violations
of its Title V
permit. The
Company and NJDEP
have been
participating in
discussions to
resolve the issues.
To date, no
Complaint or
Administrative
Order & Notice of
Civil
Administrative
Penalty Assessment
have been filed or
issued by the
NJDEP. The Company
expects to enter an
Administrative
Consent Order,
which will be
	 	$	400,000	 	 	Consent Order

Finalized in Fourth

Quarter 2009.

Penalty paid in

quarterly

installments

until 2010.







1









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	 

	 	 	 	negotiated to
resolve outstanding
alleged Title V
Operating Permit
issues, including
the penalty
settlement. The
NJDEP’s most recent
informal penalty
settlement offer is
$400,000.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),
(b), (d)

	 	Bridgeport, NJ
	 	The Company is in
receipt of October
2008 correspondence
from the Mid
Atlantic
Environmental Law
Center on behalf of
the New Jersey
Environmental
Federation (NJEF)
communicating
NJEF’s notice of
intent to file a
citizens’ suit
under the Clean
Water Act for
alleged
non-compliance with
the facility’s New
Jersey Pollution
Discharge
Elimination System
permit. The
violations alleged
in the NJEF’s
notice of intent
stem from events at
the facility that
were previously
resolved with the
NJDEP through the
payment of a civil
penalty and entry
into an
administrative
consent order
requiring upgrades
to the facility’s
operations. The
company responded
to NJEF’s letter
citing the
resolution of the
issues and other
reasons why the
NJEF’s claims are
deficient.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12 (b),(c)

	 	Geelong, Australia
	 	The Company is in
receipt of a May
2008 Cleanup Notice
from EPA Victoria
indicating that the
Geelong facility is
being placed and
Priority Sites
Register due to
alleged soil and
groundwater
contamination. The
Cleanup Notice
requires the
Company to
commission,
conduct, and submit
an approved
environmental audit
by February 28,
2009. The Company
is then required to
submit an
Environmental
	 	Not Known
	 	Not Known

	 

	 	 	 	Management Plan,
consistent with
recommendations of
the Environmental
Audit, by May 30,
2009. Site
investigation is
ongoing. The
Company is in the
process of pursuing
other potentially
responsible parties
for any costs or
work it may incur
or have to conduct
pursuant to the
Cleanup Notice.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Rotterdam,

Netherlands
	 	Potential liability
associated with
remediation for
site. The Company
believes that any
soil/groundwater
issues at the site
were the result of
historic operations
(a former gas
works)
	 	Not Known
	 	Not Known







2









 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	 

	 	 	 	prior to
Ferro’s purchase.
The company is in
the process of
selling the
facility and the
Company expects to
transfer potential
liability to the
buyer upon closing
of the transaction.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Maasdam, Netherlands
	 	Closed site where
Ferro ceased
operation in the
1980s. The
Government alleged
contamination and
filed legal action
whereby a Lien was
placed on the
Company’s Uden
facility for an
amount up to
€1.36M. The Lien
is permitted
pursuant to
7.2.3(m).
Technical reports
to support Ferro’s
position that most
contamination was
caused by prior
owner. Ferro and
government are
completing a
settlement for
€125,000.
	 	€	125,000.	 	 	Fourth Quarter 2009.

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Sao Bernardo, Brazil
	 	Ferro closed the
site but retained
ownership of a
portion of the
property for which
remediation may be
necessary. The
company has sought
and is awaiting
approval of the
remediation plan.
Additional
investigation is
proceeding.
	 	$	920K	 	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),(d)

	 	Newport, United

Kingdom
	 	New effluent limits
in the site’s
discharge permit
require an upgrade
to the site’s
biological
treatment plant for
Ferro and Solutia
generated
wastewater prior to
discharge. Costs
of upgrades to be
split by Ferro and
Solutia.
Construction of the
plant is in
progress and the
balance of the
remaining financial
commitment is
estimated to be
$500K.
Construction and
start-up is
complete.
	 	$	500,000	 	 	 	2009	 






3









 







Summary of Superfund Site Liabilities and Environmental Reserves




Active Ferro Sites




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Changes in the
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Reserve Amount
	Hammond

	 	Groundwater

contamination
	 	Under a 1993
consent order with
IDEM, a subsurface
investigation study
revealed
groundwater
contamination that
will be required to
be cleaned up in
the future.
	 	$	2,900,000	 	 	In January 2007 we
met with Dover
(current site
operator) to review
the proposed
groundwater
treatment system.
We will need to
work closely with
Dover during the
installation to
minimize its impact
on their ongoing
operations. In
March 2007 the
Remediation Work
Plan was completed
and submitted to
IDEM that includes
the treatability
testing results,
risk assessment
showing the
preliminary
remediation
objectives (PRO),
and proposed
groundwater
treatment system.
The Company and
IDEM modified the
workplan and the
revised workplan
was approved by
IDEM on November
17, 2008. The
Company is in the
process of
implementing the
workplan and
provides quarterly
project status
updates to IDEM.
	 	 No change.

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Various

	 	Superfund Sites
	 	The Company has
been a party in
several current and
former Superfund
Sites. The largest
Superfund exposure
was the WDIG Site.
Ferro has resolved
liability for this
site but is still a
	 	$	350,000	 	 	Ongoing.
	 	No change.






4









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Changes in the
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Reserve Amount
	 

	 	 	 	party at several

other Superfund

Sites	 	 	 	 	 	 	 	 
	Metallica	 	(Powder Coatings Sale)	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Arnsberg

	 	Soil contamination
	 	Former USTs may
have contaminated
soil
	 	$	100,000	 	 	Site had contamination issues.
No claims or ascertains
received from buyer to date.
	 	  No change.

 







5










 





SCHEDULE II




PERCENTAGES;

LIBOR OFFICE;

DOMESTIC OFFICE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	National City Bank

1900 East Ninth Street

Cleveland, OH 44114

Facsimile No.: (216) 222-9396

Attention: Robert S. Coleman

	 	National City Bank

1900 East Ninth Street

Cleveland, OH 44114
	 	National City Bank

1900 East Ninth Street

Cleveland, OH 44114
	 	 	0.0000000000	%	 	4.7878846837%

	 	 	18.3333333333	%	 	 	18.3333333333	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Suisse, Cayman Islands Branch

Eleven Madison Avenue

New York, NY 10010-3629

Facsimile No.: (212) 325-8321

Attention: Brian T. Caldwell

	 	Credit Suisse, Cayman Islands Branch

Eleven Madison Avenue

New York, NY 10010-3629
	 	Credit Suisse, Cayman Islands Branch

Eleven Madison Avenue

New York, NY 10010-3629
	 	 	0.0000000000	%	 	3.0387424128%

	 	 	13.3333333333	%	 	 	13.3333333333	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PNC Bank, National Association

Address on file with Revolving Loan Administrative
Agent

	 	PNC Bank, National Association

Address on file with Revolving Loan Administrative
Agent
	 	PNC Bank, National Association

Address on file with Revolving Loan Administrative
Agent

	 	 	0.0000000000	%	 	0.4029564575%

	 	 	2.9277576667	%	 	 	2.9277576667	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	KeyBank National Association

127 Public Square, 6th Floor

Cleveland, Ohio 44114

Facsimile No.: (216) 689-4649

Attention: Brian Fox

	 	KeyBank National Association

127 Public Square, 6th Floor

Cleveland, Ohio 44114
	 	KeyBank National Association

127 Public Square, 6th Floor

Cleveland, Ohio 44114
	 	 	0.0000000000	%	 	1.1111111211%

	 	 	10.0000000000	%	 	 	10.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Citicorp North America, Inc.

388 Greenwich Street, 21st floor

New York, NY 10013

Facsimile No.: (646) 291-1817

Attention: Daniel H. Gouger

	 	Citicorp North America, Inc.

388 Greenwich Street, 21st floor

New York, NY 10013
	 	Citicorp North America, Inc.

388 Greenwich Street, 21st floor

New York, NY 10013
	 	 	0.0000000000	%	 	1.2446257286%

	 	 	9.0722423333	%	 	 	9.0722423333	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

One Oxford Centre

301 Grant Street, Suite 1100

Facsimile No.: (312) 385-7096

Attention: Shawuana Simmons

	 	JPMorgan Chase Bank, N.A.

One Oxford Centre

301 Grant Street, Suite 1100
	 	JPMorgan Chase Bank, N.A.

One Oxford Centre

301 Grant Street, Suite 1100
	 	 	0.0000000000	%	 	0.0000000000%

	 	 	11.6666666667	%	 	 	11.6666666667	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	Bank of America, N.A.

Address on file with Revolving Loan Administrative
Agent and Term Loan Administrative Agent


	 	Bank of America, N.A.

Address on file with Revolving Loan Administrative
Agent and Term Loan Administrative Agent
	 	Bank of America, N.A.

Address on file with Revolving Loan Administrative
Agent and Term Loan Administrative Agent
	 	 	0.0000000000	%	 	2.4939096449%

	 	 	6.6666666667	%	 	 	6.6666666667	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fifth Third Bank

600 Superior Avenue East

Cleveland, OH 44114

Facsimile No.: (216) 274-5507

Attention: Roy C. Lanctot

	 	Fifth Third Bank

600 Superior Avenue East

Cleveland, OH 44114
	 	Fifth Third Bank

600 Superior Avenue East

Cleveland, OH 44114
	 	 	0.0000000000	%	 	0.0000000000%

	 	 	10.0000000000	%	 	 	10.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	U.S. Bank National Association

Address on file with Revolving Loan Administrative
Agent and Term Loan Administrative Agent


	 	U.S. Bank National Association

Address on file with Revolving Loan Administrative
Agent
	 	U.S. Bank National Association

Address on file with Revolving Loan Administrative
Agent
	 	 	0.0000000000	%	 	1.6467766948%

	 	 	6.6666666667	%	 	 	6.6666666667	%
	 
	RBS Citizens, National Association

Address on file with Revolving Loan Administrative
Agent and Term Loan Administrative Agent


	 	RBS Citizens, National Association

Address on file with Revolving Loan Administrative
Agent

	 	RBS Citizens, National Association

Address on file with Revolving Loan Administrative
Agent

	 	 	0.0000000000	%	 	0.0000000000%

	 	 	6.6666666667	%	 	 	6.6666666667	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	FirstMerit Bank, N.A.

101 West Prospect Avenue,

Suite 350

Cleveland, OH 44115

Facsimile No.: (216) 802-6514

Attention: Jonathan M. Isaacs

	 	FirstMerit Bank, N.A.

101 West Prospect Avenue,

Suite 350

Cleveland, OH 44115
	 	FirstMerit Bank, N.A.

101 West Prospect Avenue, Suite 350

Cleveland, OH 44115
	 	 	0.0000000000	%	 	0.2222222387%

	 	 	4.6666666667	%	 	 	4.6666666667	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Highland Capital Management, L.P.

Address on file with Term Loan Administrative Agent

	 	Highland Capital Management, L.P.

Address on file with Term Loan Administrative Agent
	 	Highland Capital Management, L.P.

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	21.7063285064%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Suisse Alternative Investments

Address on file with Term Loan Administrative Agent

	 	Credit Suisse Alternative Investments 

Address on file with Term Loan Administrative Agent
	 	Credit Suisse Alternative Investments 

Address on file with Term Loan Administrative

Agent

	 	 	0.0000000000	%	 	21.3675026472%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Eaton Vance Management

Address on file with Term Loan Administrative 

Agent


	 	Eaton Vance Management

Address on file with Term Loan Administrative Agent
	 	Eaton Vance Management

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	9.5691077821%

	 	 	0.0000000000	%	 	 	0.0000000000	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	Metropolitan Life Insurance Company

Address on file with Term Loan Administrative 

Agent


	 	Metropolitan Life Insurance Company

Address on file with Term Loan Administrative Agent
	 	Metropolitan Life Insurance Company

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	3.1435132705%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deerfield Capital Management LLC

Address on file with Term Loan Administrative 

Agent


	 	Deerfield Capital Management LLC

Address on file with Term Loan Administrative Agent
	 	Deerfield Capital Management LLC

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	3.9670205420%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sankaty Advisors, LLC

Address on file with Term Loan Administrative 

Agent


	 	Sankaty Advisors, LLC 

Address on file with Term Loan Administrative

Agent

	 	Sankaty Advisors, LLC 

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	4.3702434440%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Seneca Capital

Address on file with Term Loan Administrative 

Agent


	 	Seneca Capital

Address on file with Term Loan Administrative Agent
	 	Seneca Capital

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	0.6891549410%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	First Commonwealth Bank

Address on file with Term Loan Administrative 

Agent


	 	First Commonwealth Bank

Address on file with Term Loan Administrative

Agent

	 	First Commonwealth Bank

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	4.9551967486%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TriState Capital Bank

Address on file with Term Loan Administrative Agent

	 	TriState Capital Bank

Address on file with Term Loan Administrative Agent
	 	TriState Capital Bank

Address on file with Term Loan Administrative

Agent

	 	 	0.0000000000	%	 	3.3564505247%

	 	 	0.0000000000	%	 	 	0.0000000000	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	McDonnell Investment Management, LLC

Address on file with Term Loan Administrative 

Agent


	 	McDonnell Investment Management, LLC Address on

file with Term Loan Administrative Agent

	 	McDonnell Investment Management, LLC Address on

file with Term Loan Administrative Agent

	 	 	0.0000000000	%	 	0.0861443745%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Morgan Stanley Investment Management Inc.

Address on file with Term Loan Administrative
Agent


	 	Morgan Stanley Investment Management Inc.

Address on file with Term Loan Administrative Agent
	 	Morgan Stanley Investment Management Inc.

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	2.6666666368%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The PrivateBank & Trust Company

Address on file with Term Loan Administrative 

Agent


	 	The PrivateBank & Trust Company

Address on file with Term Loan Administrative Agent
	 	The PrivateBank & Trust Company

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	2.6561527374%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Travelers Insurance Co.

Address on file with Term Loan Administrative
Agent


	 	Travelers Insurance Co.

Address on file with Term Loan Administrative Agent
	 	Travelers Insurance Co.

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	1.0959151891%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fortis Bank SA/NV, New York Branch

Address on file with Term Loan Administrative Agent

	 	Fortis Bank SA/NV, New York Branch

Address on file with Term Loan Administrative Agent
	 	Fortis Bank SA/NV, New York Branch

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	1.3303464520%

	 	 	0.0000000000	%	 	 	0.0000000000	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL	 	 	 	EXTENDED	 	 
	NAME AND	 	 	 	 	 	REVOLVING	 	ORIGINAL TERM	 	REVOLVING	 	NEW TERM
	NOTICE ADDRESS	 	 	 	DOMESTIC	 	LOAN	 	LOAN	 	LOAN	 	LOAN
	OF LENDER	 	LIBOR OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT	 	COMMITMENT
	Lufkin Advisors

Address on file with Term Loan Administrative 

Agent


	 	Lufkin Advisors

Address on file with Term Loan Administrative Agent
	 	Lufkin Advisors

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	0.6666666816%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Linden Capital LP

Address on file with Term Loan Administrative 

Agent


	 	Linden Capital LP

Address on file with Term Loan Administrative Agent
	 	Linden Capital LP

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	1.7228873525%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Arbiter Partners

Address on file with Term Loan Administrative 

Agent


	 	Arbiter Partners

Address on file with Term Loan Administrative Agent
	 	Arbiter Partners

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	0.3241633056%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Frontfour Master Fund

Address on file with Term Loan Administrative 

Agent


	 	Frontfour Master Fund

Address on file with Term Loan Administrative Agent
	 	Frontfour Master Fund

Address on file with Term Loan Administrative Agent
	 	 	0.0000000000	%	 	0.3445774705%

	 	 	0.0000000000	%	 	 	0.0000000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Amida Capital Management

Address on file with Term Loan Administrative Agent

	 	Amida Capital Management

Address on file with Term Loan Administrative Agent
	 	Amida Capital Management

Address on file with Term Loan Administrative

Agent

	 	 	0.0000000000	%	 	1.0337324115%

	 	 	0.0000000000	%	 	 	0.0000000000	%






 









 






SCHEDULE IV




FOREIGN SUBSIDIARIES




	 	 	 
	Zibo Ferro Performance Materials Company, Limited (70%)*

	 	Peoples Republic of China
	Ferro Colores S.A. de C.V**

	 	Mexico
	Ferro Argentina SA

	 	Argentina
	Ferro Corporation (Australia) Pty Ltd

	 	Australia
	Ferro Enamel do Brasil Industria e Comercio Ltda

	 	Brazil
	Ferro Industrial Products Ltd

	 	Canada
	Ferro Holding GmbH

	 	Germany
	PT Ferro Mas Dinamika (95%)

	 	Indonesia
	Ferro Japan K.K

	 	Japan
	Ferro Far East Ltd

	 	Hong Kong
	Ferro Mexicana SA de CV

	 	Mexico
	Ferro (Suzhou) Performance Materials Co. Ltd

	 	Peoples Republic of China
	Ferro Taiwan Ltd

	 	Taiwan
	Ferro Spain SA

	 	Spain
	Ferro (Thailand) Co. Ltd.

	 	Thailand
	Ferro de Venezuela CA (51%)

	 	Venezuela
	Ferro (Great Britain) Ltd

	 	United Kingdom
	Ferro BV

	 	(Netherlands)
	Ferro LLC

	 	Russia








 




			
	*	 	Subsidiary of Ferro China Holdings Inc.
	 
	**	 	Subsidiary of Ferro Color & Glass Corporation






 











 





Disclosure Schedules to Amendment No. 4 to the Existing Credit Agreement







			
	*	 	
All previous disclosure schedules to the credit agreement and the amended and restated
credit agreement are hereby incorporated into this document, except for the disclosure
schedules that are amended and restated as set forth below.






ITEM 6.7 Litigation



     In February 2003, the Company received a request to produce documents in connection with
an investigation by the United States Department of Justice into possible antitrust
violations in the heat stabilizer industry. In April 2006. the Company was notified by the
Department of Justice that the Government had closed its investigation and that the Company
was relieved of any obligation to retain documents that were responsive to the Government’s
earlier document request. Before closing its investigation, the Department of Justice took no
action against the Company or any of its current or former employees. The Company was
previously named as a defendant in several lawsuits alleging civil damages and requesting
injunctive relief relating to the conduct the Government was investigating and, in June 2008,
the Company was named in four more indirect purchaser lawsuits related to an existing lawsuit
in the Eastern District of Pennsylvania. In July 2007, the Company entered into a definitive
written settlement agreement in the class action lawsuit involving direct purchasers. The
settlement agreement was approved by the United States District Court for the Eastern
District of Pennsylvania in December 2007. Although the Company decided to bring this matter
to a close through settlement, the Company did not admit to any of the alleged violations and
continues to deny any wrongdoing. The Company is vigorously defending the remaining six civil
actions alleging antitrust violations in the heat stabilizer industry. These actions are in
their early stages; therefore, the Company cannot determine the outcomes of these lawsuits at
this time. In December 2006. the Company filed a lawsuit against the former owner of our heat
stabilizer business seeking indemnification for the defense of these lawsuits and any
resulting payments by the Company. In April 2008, the United States District Court for the
Northern District of Ohio dismissed the Company’s lawsuit, and the Company has appealed the
court’s decision to the United States Court of Appeals for the Sixth Circuit.



ITEM 6.8 Existing Subsidiaries





	 	 	 
	Name of Subsidiary	 
	 
	 
	Ferro China Holdings Inc
	 	USA
	Zibo Ferro Performance Materials Company Limited (70%)
	 	Peoples Republic of China
	Ferro Electronic Materials Inc
	 	USA
	Ferro Finance Corporation
	 	USA
	Ferro Color & Glass Corporation
	 	USA
	Ferro Colores SA de CV
	 	Mexico
	Ferro International Services Inc
	 	USA
	Ferro
Pfanstiehl Laboratories, Inc
	 	USA
	Ferro Pfanstiehl (Europe) Ltd.
	 	United Kingdom
	Ferro
Argentina SA
	 	Argentina
	Minera Loma Blanca SA
	 	Argentina
	Procesadora de Boratos Argentinos
	 	Argentina
	Ferro Corporation (Australia) Pty Ltd
	 	Australia






 









 






	 	 	 
	Name of Subsidiary	 
	 
	 
	Ferro Enamel
Do Brasil Industria e Comercio Ltda.
	 	Brazil
	Ferro Industrial Products Ltd.
	 	Canada
	ESFFL SA(19%)
	 	Ecuador
	Ferro Holding GmbH
	 	Germany
	Ferro GmbH
	 	Germany
	Ferro Magmalor GmbH
	 	Germany
	PT Ferro Mas Dinamika (95%)
	 	Indonesia
	Ferro Japan K. K
	 	Japan
	Ferro Far East Ltd
	 	Hong Kong
	Ferro Far East Company SDN, BHD
	 	Malaysia
	Ferro Maxiciana SA de CV
	 	Mexico
	Ferro B.V.
	 	The Netherlands
	Ferro (Belgium) Sprl
	 	Belgium
	FC France Acquisition Sarl
	 	France
	Ferro Couleurs France SA
	 	France
	PT Ferro Ceramics Colors Indonesia (59%)
	 	Indonesia
	PT Ferro
Additives Asia (75.4%)
	 	Indonesia
	Ferro France Sarl
	 	France
	Ferro Services Sarl
	 	France
	Ferro Arnsberg GMBH iL
	 	Germany
	Ferro (Italia) SrL
	 	Italy
	Smaltochimica SrL (40%)
	 	Italy
	Ferro (Holland) BV
	 	The Netherlands
	Ferro Investments BV
	 	The Netherlands
	Ferro Industrias Quimicas (Portugal) Lda
	 	Portugal
	Ferro
(Suzhou) Performance Materials Co. Ltd.
	 	Peoples Republic of China
	Ferro Taiwan Ltd
	 	Republic of China
	DC-Ferro Co.,
Ltd. (50%)
	 	Republic of Korea
	Ferro Spain SA
	 	Spain
	Gardenia-Quimica SA (36%)
	 	Spain
	Kerajet SA
(19.99%)
	 	Spain
	Ferro (Thailand) Co. Ltd.
	 	Thailand
	Ferro Cerdec
(Thailand) Co. Ltd. (49%)
	 	Thailand
	Ferro de Venezuela CA (51%)
	 	Venezuela
	Ferro (Great Britain) Ltd
	 	United Kingdom
	Ferro
Colours (UK) Ltd. (Dormant)
	 	United Kingdom
	Ferro
Drynamels Limited (Dormant)
	 	United Kingdom
	Ferro Normandy Plastics Limited (Dormant)
	 	United Kingdom
	Midland Coatings Limited (Dormant)
	 	United Kingdom
	Ohio-Mississippi Corporation (Dormant)
	 	USA
	Cataphole Contracting Company (Dormant)
	 	USA
	The Ferro Enamel Supply Company (Dormant)
	 	USA
	Ferro Far East, Inc. (Dormant)
	 	USA






ITEM 6.12 Environmental Matters




See attached.





 












 







Item 6.12 Environmental Disclosures




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	6.12(i)

	 	Niagara Falls, NY
	 	Buried TENORM. When Cookson owned the site they
buried some silica fume in back of the plant that contains
TENORM. The landfill area has been of interest to NRC and
NYDEC.
	 	Not
Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	Hammond, IN
	 	CERCLIS list. One of the three land parcels (parking lot
area) at the former Keil Chemical site is listed on CERCLIS
because it has a landfill area created by Union Carbide when
they owned the land. No clean up was required due to a low
CERCLIS score.
	 	Not
Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	South Plainfield, NJ
	 	CERCLIS list. This site was put on the CERCLIS list in
1993 and we don’t know why. Ferro sold this site in 2003
and went through a NJ ISRA investigation. After some
limited remediation it met residential clean up criteria.
	 	Not
Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),(d)

	 	Castenheira, Portugal
	 	Wastewater treatment. Need to upgrade wastewater
treatment plant to meet discharge limitations during storm
events, which hydraulically overload the current treatment
system.
	 	$	360,000	 	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(6.12(a),
(b),(d))

	 	South Plainfield, NJ
	 	Title V Air Permitting Compliance. The State of New Jersey
has notified the Company of alleged non-compliance with
the facility’s Title V operating permit. The New Jersey
Department of Environmental Protection
(NJDEP) informally alleged up to $1.9MM in liability for
alleged violations of its Title V permit. The Company and
NJDEP have been participating in discussions to resolve the
issues. To date, no Complaint or Administrative Order &
Notice of Civil Administrative Penalty Assessment have
been filed or issued by the NJDEP. The Company expects to
enter an Administrative Consent Order, which will be
	 	Not
Known
	 	Not Known







1









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	 

	 	 	 	negotiated to resolve outstanding alleged Title V Operating
Permit issues, including the penalty settlement. The
NJDEP’s most recent informal penalty settlement offer is
$400,000.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(6.12(a),
(b),(d))

	 	Bridgeport, NJ
	 	The Company is in receipt of October 2008 correspondence
from the Mid Atlantic Environmental Law Center on behalf
of the New Jersey Environmental Federation (NJEF)
communicating NJEF’s notice of intent to file a citizens’ suit
under the Clean Water Act for alleged non-compliance with
the facility’s New Jersey Pollution Discharge Elimination
System permit. The violations alleged in the NJEF’s notice
of intent stem from events at the facility that were previously
resolved with the NJDEP through the payment of a civil
penalty and entry into an administrative consent order
requiring upgrades to the facility’s operations. The company
responded to NJEF’s letter citing the resolution of the issues
and other reasons why the NJEF’s claims are deficient.
	 	Not
Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(6.12
(b),(c))

	 	Geelong, Australia
	 	The Company is in receipt of a May 2008 Cleanup Notice
from EPA Victoria indicating that the Geelong facility is
being placed and Priority Sites Register due to alleged soil
and groundwater contamination. The Cleanup
Notice requires the Company to commission, conduct, and
submit an approved environmental audit by February 28,
2009. The Company is then required to submit an
Environmental Management Plan, consistent with
recommendations of the Environmental Audit, by May 30,
2009. The Company is in the process of pursuing other
potentially responsible parties for any costs or work it may
incur or have to conduct pursuant to the Cleanup Notice.
	 	Not
Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Rotterdam,

Netherlands
	 	Potential liability associated with remediation for site. The
Company believes that any soil/groundwater issues at the site
were the result of historic operations (a former gas works)
prior to Ferro’s purchase. The company is in the process of
	 	Not
Known
	 	Not Known







2









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	 

	 	 	 	selling the facility and the Company expects to transfer
potential liability to the buyer upon closing of the
transaction.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Maasdam, Netherlands
	 	Closed site where Ferro ceased operation in the 1980s. The
Government alleged contamination and filed legal action
whereby a Lien was placed on the Company’s Uden facility
for an amount up to €1.36M. The Lien is permitted pursuant
to 7.2.3(m).
	 	$	512,449	 	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(b),(c)

	 	Sao Bernardo, Brazil
	 	Ferro closed the site but retained ownership of a portion of
the property for which remediation may be necessary. The
company has sought and is awaiting approval of the
remediation plan.
	 	$	920K	 	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(a),(d)

	 	Newport, United

Kingdom
	 	New effluent limits in the site’s discharge permit require an
upgrade to the site’s biological treatment plant for Ferro and
Solutia generated wastewater prior to discharge. Costs of
upgrades to be split by Ferro and Solutia. Construction of
the plant is in progress and the balance of the remaining
financial commitment is estimated to be $500K.
	 	$	500,000	 	 	 	2009	 






3









 







Summary of Superfund Site Liabilities and Environmental Reserves




Active Ferro Sites




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Changes in the
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Reserve
Amount
	Hammond

	 	Groundwater

contamination
	 	Under a 1993 consent order with
IDEM, a subsurface
investigation study revealed
ground water contamination that
will be required to be cleaned up
in the future.
	 	$	2,900,000	 	 	In January 2007 we met with Dover
(current site operator) to review the
proposed groundwater treatment
system. We will need to work closely
with Dover during the installation to
minimize its impact on their ongoing
operations. In March 2007 the
Remediation Work Plan was completed
and submitted to IDEM that includes
the treatability testing results, risk
assessment showing the preliminary
remediation objectives (PRO), and
proposed groundwater treatment
system. The Company and
IDEM modified the workplan and the
revised workplan was approved by
IDEM on November 17, 2008. The
Company is in the process of
implementing the workplan and
provides quarterly project status
updates to IDEM.
	 	No change.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Various

	 	Superfund Sites
	 	The Company has been a party
in several current and former
Superfund Sites. The largest
Superfund exposure was the
WDIG Site. Ferro has resolved
liability for this site but is still a
	 	$	350,000	 	 	Ongoing.
	 	No change.






4









 










	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Changes in the
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Reserve Amount
	 

	 	 	 	party at several other Superfund

sites	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Metallica	 	(Powder Coatings
Sale)
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Arnsberg

	 	Soil

contamination
	 	Former USTs may have
contaminated soil
	 	$	100,000	 	 	Site had
contamination
issues. No claims
or ascertains
received from buyer
to date.
	 	No change.






5









 






Disclosure Schedules to Amended and Restated Credit Agreement






 




			
	*	 	All previous disclosure schedules to the credit agreement are hereby incorporated into this
document, except for the disclosure schedules that are amended and restated as set forth below.





ITEM 6.7 Litigation




     In February 2003, the Company received a request to produce documents in connection with an
investigation by the United States Department of Justice into possible antitrust violations in the
heat stabilizer industry. In April 2006, the Company was notified by the Department of Justice that
the Government had closed its investigation and that the Company was relieved of any obligation to
retain documents that were responsive to the Government’s earlier document request. Before closing
its investigation, the Department of Justice took no action against the Company or any of its
current or former employees. The Company was previously named as a defendant in several lawsuits
alleging civil damages and requesting injunctive relief relating to the conduct the Government was
investigating. The Company is vigorously defending the Company in those actions and believes the
Company would have a claim for indemnification by the former owner of the Company’s heat stabilizer
business if the Company were found liable. Because these actions are in their preliminary stages,
the Company cannot determine the outcomes of these lawsuits at this time.



ITEM 6.12 Environmental Matters




See attached.





 












 






Section 6.12 Environmental Disclosures




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Estimated
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	6.12(d)

	 	Buenos Aires, Argentina
	 	Air emissions compliance. Need to install scrubbers
on smelters to comply with air emission limitations for
lead and dust.
	 	$	1,326,000	 	 	December 2007

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(d)

	 	Limoges, France
	 	Air emissions compliance. Scrubbers were installed
last year and are not meeting the emissions limits in
their new operating permit. We continue to negotiate
a compliance schedule with the authorities. The
estimated cost assumes additional dry type filters are
needed.
	 	$	1,000,000	 	 	December 2008

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(d)

	 	Saraburi, Thailand
	 	Air emissions compliance. Installed scrubbers on
smelters to comply with air emission limitations for
lead and dust. However, compliance testing has not
yet been completed.
	 	$	606,000	 	 	September 2006

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(i)

	 	Bekasi, Indonesia
	 	Air emissions compliance. Need to install scrubbers
on smelters to resolve neighbor compliants over dust
in emissions. Two additional scrubbers are planned
for late 2007, finish in 2008.
	 	$	550,000	 	 	 	2008	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(i)

	 	Niagara Falls, NY
	 	Buried TENORM. When Cookson owned the site they
buried some silica fume in back of the plant that
contains TENORM. The landfill area has been of
interest to NRC and NYDEC.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	Hammond, IN
	 	CERCLIS list. One of the three land parcels (parking
lot area) at the former Keil Chemical site is listed on
CERCLIS because it has a landfill area created by
Union Carbide when they owned the land. No clean
up was required due to a low CERCLIS score.
	 	Not known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(e)

	 	South Plainfield, NJ
	 	CERCLIS list. This site was put on the CERCLIS list
in 1993 and we don’t know why. Ferro sold this site in
2003 and went through a NJ ISRA investigation.
After some limited remediation it met residential clean
up criteria.
	 	Not Known
	 	Not Known

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.12(d)

	 	Castenheira, Portugal
	 	Wastewater treatment. Need to upgrade wastewater
treatment plant to meet discharge limitations during
storm events, which hydraulically overload the current
treatment system.
	 	$	500,000	 	 	Not Known







rbs/5.29.07



 









 







Second Quarter 2007

Summary of Superfund Site Liabilities and Environmental Reserves




Active Ferro Sites




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Changes in the
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Reserve Amount
	Hammond

	 	Groundwater

contamination
	 	Under a 1993 consent order with
IDEM, a subsurface investigation
study revealed groundwater
contamination that will be
required to be cleaned up in the
future.
	 	$	3,000,000	 	 	In January 2007 we met with
Dover (current site operator) to
review the proposed
groundwater treatment system.
We will need to work closely
with Dover during the
installation to minimize its
impact on their ongoing
operations. In March 2007 the
Remediation Work Plan was
completed and submitted to
IDEM that includes the
treatability testing results, risk
assessment showing the
preliminary remediation
objectives (PRO), and proposed
groundwater treatment system.
We don’t expect comments
back from the agency for a few
months.
	 	No change.







	 	 	 	 	 	 	 	 	 	 	 	 	 
	Metallica 	 	 	 	 (Powder Coatings Sale)
	 
	 
	Arnsberg

	 	Soil

contamination
	 	Former USTs may have
contaminated soil
	 	$	100,000	 	 	Site had contamination issues.
No claims or ascertains
received from buyer to date.
	 	No change.






Rbs/5-29-07



Page 1 of 1





 











 





SCHEDULE I




DISCLOSURE SCHEDULE TO CREDIT AGREEMENT




     ITEM 6.7. Litigation.



None.




     ITEM 6.8. Existing Subsidiaries.



	 	 	 
	Ferro China Holdings Inc.

	 	USA
	Zibo Ferro Performance Materials Company, Limited (70%)

	 	Peoples Republic of China
	Ferro Electronic Materials Inc.

	 	USA
	Ferro Finance Corporation

	 	USA
	Ferro Color & Glass Corporation

	 	USA
	Ferro Colores SA de CV

	 	Mexico
	Ferro International Services Inc.

	 	USA
	Ferro Pfanstiehl Laboratories, Inc.

	 	USA
	Ferro Pfanstiehl (Europe) Ltd.

	 	United Kingdom
	Ferro Argentina SA

	 	Argentina
	Minera Loma Blanca SA

	 	Argentina
	Procesadora de Boratos Argentinos SA

	 	Argentina
	Ferro Corporation (Australia) Pty Ltd.

	 	Australia
	Ferro Enamel do Brasil Industria e Comercio Ltda,

	 	Brazil
	Ferro Industrial Products Ltd.

	 	Canada
	Ferro Holding GmbH

	 	Germany
	Ferro GmbH

	 	Germany
	Ferro Magmalor GmbH

	 	Germany
	FC France Acquisition Sarl

	 	France
	Ferro Couleurs France SA

	 	France
	PT Ferro Ceramic Colors Indonesia (59%)

	 	Indonesia
	PT Ferro Additives Asia (60%)

	 	Indonesia
	PT Ferro Mas Dinamika (95%)

	 	Indonesia
	Ferro Japan K. K

	 	Japan
	Ferro Far East Ltd.

	 	Hong Kong
	Ferro Far East Company SDN, BHD

	 	Malaysia
	Ferro
Mexicana SA de CV

	 	Mexico
	Ferro B.V

	 	The Netherlands
	Ferro (Belgium) Sprl,

	 	Belgium
	Ferro France Sarl,

	 	France
	Ferro Chemicals SA

	 	France
	Ferro Services Sarl

	 	France
	Ferro
Arnsberg GmbH iL

	 	Germany
	Ferro (Italia) SrL

	 	Italy
	Ferro (Holland) BV

	 	The Netherlands
	Ferro Investments BV

	 	The Netherlands
	Ferro Industrias Quimicas (Portugal) Lda

	 	Portugal
	Ferro (Suzhou) Performance Materials Co. Ltd.

	 	Peoples Republic of China
	Ferro Taiwan Ltd.

	 	Republic of China
	Ferro Spain SA

	 	Spain
	Ferro (Thailand) Co. Ltd.

	 	Thailand
	Ferro de Venezuela CA (51%)

	 	Venezuela






 









 






	 	 	 
	Ferro (Great Britain) Ltd

	 	United Kingdom
	Ferro Colours (UK) Ltd. (dormant)

	 	United Kingdom
	Ferro Drynamels Limited (dormant)

	 	United Kingdom
	Ferro Normandy Plastics Limited (dormant)

	 	United Kingdom
	Midland Coatings Limited (dormant)

	 	United Kingdom
	Ohio-Mississippi Corporation (dormant)

	 	USA
	Cataphote Contracting Company (dormant)

	 	USA
	The Ferro Enamel Supply Company (dormant)

	 	USA
	Ferro Far East, Inc. (dormant)

	 	USA






     ITEM 6.11. Employee Benefit Plans.


Benefits Plan for Ferro Corporation Employees (Plan No. 552), including:




     1. PPO Plan, Indemnity Plan or Drug Only Plan (dmc2) — all with UnitedHealthcare (UHC)



     2. Kaiser HMO (available in addition to the PPO Plan with UHC for the Hourly at Walton
Hills and 4150 Frit)



     3. Independent Health HMO (available in addition to the PPO Plan with UHC at Hourly at
Niagara Falls)



     4. Community Blue HMO (available in addition to the PPO Plan with UHC at Hourly at Niagara
Falls)



     ITEM 6.12. Environmental Matters.


See spreadsheets of Environmental Matters, attached




     ITEM 7.2.2(b) Indebtedness to be Paid.


See summary of Indebtedness, attached




     ITEM 7.2.2(c) Existing Indebtedness.


See summary of Indebtedness, attached




     ITEM 7.2.3(c) Ongoing Liens.


See summaries of Lien Search Results, attached




     ITEM 7.2.5(a) Ongoing Investments


None.




 









 







Section 6.12 Environmental Disclosures




	 	 	 	 	 	 	 	 	 	 	 
	Section	 	Location	 	Issue	 	Estimated Cost	 	Completion Date
	6.12(d)

	 	Buenos Aires, Argentina
	 	Air emissions compliance. Need
to install scrubbers on
smelters to comply with air
emission limitations for lead
and dust.
	 	$	1,326,000	 	 	December 2007
	 
	6.12(d)

	 	Limoges, France
	 	Air emissions compliance.
Scrubbers were installed this
year and are not meeting the
emissions limits in their new
operating permit. Ferro is
negotiating a compliance
schedule with the authorities.
	 	Not Known
	 	Estimated mid-2007
	 
	6.12(d)

	 	Limoges, France
	 	Landfill cover. The site’s new
operating permit requires an
engineered cover that is
currently being installed.
	 	$	613,000	 	 	December 2006
	 
	6.12(d)

	 	Saraburi, Thailand
	 	Air emissions compliance. Need
to install scrubbers on
smelters to comply with air
emission limitations for lead
and dust.
	 	$	606,000	 	 	September 2006
	 
	6.12(i)

	 	Bekasi, Indonesia
	 	Air emissions compliance. Need
to install scrubbers on
smelters to resolve neighbor
compliants over dust in
emissions.
	 	$	600,000	 	 	September 2006
	 
	6.12(d)

	 	Bekasi, Indonesia
	 	Wastewater treatment. Need to
upgrade wastewater treatment
plant to meet discharge
limitations.
	 	$	250,000	 	 	Not Known
	 
	6.12(d)

	 	Alamazora, Spain
	 	Wastewater treatment. Need to
upgrade wastewater treatment
plant to meet discharge
limitations. Occasionally
exceed limits for metals and
boron.
	 	$	520,000	 	 	Not Known
	 
	6.12(i)

	 	Niagara Falls, NY
	 	Buried TENORM (low level
radioactive material). When
Cookson owned the site they
buried some silica fume in
back of the plant that
contains TENORM. The landfill
area has been of interest to
NRC and NYDEC.
	 	Not Known
	 	Not Known
	 
	6.12(a)

	 	Bridgeport, NJ
	 	Wastewater compliance.
Potential violation of New
Jersey Wastewater Pollution
Control Act discovered during
routine audit and voluntarily
disclosed to NJDEP. Penalty
not yet assessed. Records have
been subpoenaed.
	 	Not Known
	 	Not Known
	 
	6.12(e)

	 	Hammond, IN
	 	CERCLIS list. One of the three
land parcels (parking lot
area) at the former Keil
Chemical site is listed on
CERCLIS because it has a
landfill area created by Union
Carbide when they owned the
land. No clean up was required
due to a low CERCLIS score.
	 	Not Known
	 	Not Known
	 
	6.12(e)

	 	South Plainfield, NJ
	 	CERCLIS list. This site was
put on the CERCLIS list in
1993 and we don’t know why.
Ferro sold this site in 2003
and went through a NJ ISRA
investigation. After some
limited remediation it met
residential clean up criteria.
	 	Not Known
	 	Not Known






rbs/5.26.06




 










 







First Quarter 2006 

Environmental Issues and
Reserves1
Update — Active and Former Sites




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Suggested	 	 	 	 
	Site	 	Issue	 	Description	 	Reserve	 	Comments	 	Changes in the Reserve Amount
	Hammond

	 	Groundwater

contamination
	 	Under a 1993 consent
order with IDEM, a
subsurface
investigation study
revealed groundwater
contamination that
will be required to
be cleaned up in the
future.
	 	$	3,000,000	 	 	A plan to develop a RAP along
with work plans for the human
health risk assessment and
treatability study were
submitted to IDEM at the end
of October. Sampling for the
treatability study was
conducted at Keil just before
Christmas. Samples were also
sent out for analytical and to
selected vendors.
	 	No change.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total

	 	 	 	 	 	$	3,000,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Metallica

	 	 	 	(Powder Coatings Sale)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Arnsberg

	 	Soil contamination
	 	Former USTs may have
contaminated soil
	 	$	100,000	 	 	Site had contamination issues.
No claims or ascertains
received from buyer to date.
	 	No change.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total

	 	 	 	 	 	$	100,000	 	 	 	 	 








 




			
	1	 	Updates are shown in italics




 









 






Ferro Corporation Indebtedness

As of 3/31/06 — or Date Indicated




7.2.2 (b) Indebtedness to be repaid or rolled into new credit agreement at closing




	 	 	 	 	 
	(1) Revolving Credit Agreement Borrowings as of 5/31/06
	 	$	242,800,000	 
	 
	 	 	 	 
	(2) Letters of Credit (Face Amount) as of 5/31/06
	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LC#	 	Bank	 	Face Amount	 	 	 	 	 	 	 	 	 
	SCL012516
	 	National City Bank	 	$	5,200,000	 	 	 	 	 	 	 	 	 
	3692
	 	National City Bank	 	 	2,500,000	 	 	 	 	 	 	 	 	 
	4419
	 	National City Bank	 	 	2,682,853	 	 	 	 	 	 	 	 	 
	SCL011141
	 	National City Bank	 	 	2,000,000	 	 	 	 	 	 	 	 	 
	SCL011142
	 	National City Bank	 	 	2,000,000	 	 	 	 	 	 	 	 	 
	SCL006242
	 	National City Bank	 	 	118,133	 	 	 	 	 	 	 	 	 
	SCL006590
	 	National City Bank	 	 	64,169	 	 	 	 	 	 	 	 	 
	S304999
	 	KeyBank	 	 	2,673,597	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	$	17,238,752	 	 	 	 	 	 	$	17,238,752	 






7.2.2 (c) Other indebtedness existing as of 3/31/06 available for repayment




(1) Bonds and Indentures




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Face Value	 	 	Book Value	 	 	 	 	 
	Senior notes, 9.125%, due 2009	 	$	200,000,000	 	 	$	198,999,754	 	 	 	 	 
	Debentures, 7.625%, due 2013	 	 	25,000,000	 	 	 	24,879,693	 	 	 	 	 
	Debentures, 7.375%, due 2015	 	 	25,000,000	 	 	 	24,965,500	 	 	 	 	 
	Debentures, 8.0%, due 2025	 	 	50,000,000	 	 	 	49,555,435	 	 	 	 	 
	Debentures, 7.125%, due 2028	 	 	55,000,000	 	 	 	54,537,342	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	$	355,000,000	 	 	$	352,937,724	 	 	$	352,937,724	 






	 	 	 	 	 
	(1) Other Long Term Debt, Including Current Portion of Long Term Debt
	 	$	1,460,382	 
	(1) Local Lines of Credit
	 	$	4,752,897	 
	(1) Overdraft on Bank Accounts
	 	$	1,440,239	 
	(1) Capital Lease Obligations
	 	$	7,129,031	 
	(2) Permitted Receivables Program as of 5/31/06
	 	$	67,300,000	 
	(1) Outstanding Balance of Trade Receivables/Notes Sold with Full Recourse
	 	$	99,803	 
	(3) Net Hedging Obligations: Various FX Forward Contracts and Commodity Swap Contracts
— Contracts were in a net gain position
	 	$	0	 
	(2) Other Various Foreign Letters of Credit
	 	$	2,057,340	 






	 	 	 	 	 
	Balance Sheet Debt
	 	$	610,620,076	 











			
	Notes	 	1 Included as debt in the Company’s consolidated balance sheet
	 
	 	 	2 Not Included in consolidated balance sheet
	 
	 	 	3 Included in consolidated balance sheet — but not as debt




 









 






ITEM 7.2.3(c) Ongoing Liens.







 







 






FERRO
CORPORATION 
REFINANCING OF
SENIOR CREDIT FACILITY




UCC SEARCH RESULTS CHART

as of 05-12-06



Ferro Corporation






	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	Indiana

	 	Konica Business Technologies

Fleet Capital Leasing
	 	200100003158555

filed 6/11/01
	 	 	 	Leased Konica Fax
	 
	 	 	 	 	 	 	 	 
	New Jersey

	 	Toyota Motor Credit Corp.
	 	2018877 filed

1/16/01
	 	 	 	Forklift
	 
	 	 	 	 	 	 	 	 
	New Jersey

	 	Minolta National Bank
	 	2039531 filed 5/2/01
	 	Con’t 2/23/06
	 	Leased manlifts
	 
	 	 	 	 	 	 	 	 
	New Jersey

	 	Xerox Corporation
	 	21238031 filed

9/26/02
	 	 	 	Xerox 957389737
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	See separate chart	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Texas

	 	Mellon US Leasing
	 	0100087548 filed

5/9/01
	 	 	 	Leased Dell
	 
	 	 	 	 	 	 	 	 
	East Baton Rouge 

Parish, Louisiana

	 	Air Products and Chemicals
	 	17-1170152 filed

5/13/99
	 	Con’t 2/18/04
	 	Fixture (Absorbers vessels,
vaporizers, air co9mpressor,
switchboard, vacuum can,
injection manifold, tank,
etc.)
	 
	 	 	 	 	 	 	 	 
	East Baton Rouge 

Parish, Louisiana

	 	Fleet Capital Leasing
	 	17-1214906 filed

5/23/01
	 	 	 	Leased Konica Fax






 












 






Ferro Electronic Materials Inc.




	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	Pacific Industrial Development Corp.
	 	41315847 filed

5/11/04
	 	 	 	All chemical or other products

delivered for storage (bailment)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	Hyster Credit Company
	 	41327750 filed

5/12/04
	 	 	 	Certain equipment (Hyster HI 10XL)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	CitiCorp North America, Inc., as Agent
	 	52679091 filed

8/29/05
	 	Debtor Amended

4/12/06
	 	Accounts Receivable Securitization
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	CitiCorp North America, Inc., as Agent
	 	52679323 filed

8/29/05
	 	Debtor Amended

4/12/06
	 	Accounts Receivable Securitization
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	National City Bank, as Administrative

Agent
	 	61310549 filed

4/19/06
	 	 	 	All Personal Property
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	JP Morgan Trust Company, National

Association
	 	61319276 filed

4/19/06
	 	 	 	Blanket (subject to Collateral
Sharing Agreement)
	 
	 	 	 	 	 	 	 	 
	New York

	 	Ferro Finance Corporation CitiCorp
North America, Inc.
	 	187312 filed 9/27/00
	 	 	 	Accounts Receivable Securitization
	 
	 	 	 	 	 	 	 	 
	New York

	 	Ferro Finance Corporation CitiCorp
North America, Inc.
	 	187314 filed 9/27/00
	 	 	 	Accounts Receivable Securitization






Clear searches:




          California

          New Jersey

          Ohio




 









 







Ferro Pfanstiehl Laboratories, Inc.




	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	Agilent Financial Services, Inc.
	 	21138100 filed 4/18/02
	 	Coll amended 10/1/02
	 	Lease of certain equipment
(chemical analysis equipment)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	Mitsubishi International Corporation
	 	31158537 filed 5/5/03
	 	 	 	Consignment (Maltose powder

owned by Secured Party)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	GFC Leasing
	 	32022351 filed 8/5/03
	 	 	 	Lease of Canon Imagerunner
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	GFC Leasing
	 	40208076 filed 1/27/04
	 	 	 	Lease of Laser Fax
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	MIC Specialty Chemicals, Inc.
	 	42097907 filed 7/26/04
	 	 	 	Consignment (Maltose powder

owned by Secured Party)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	Mitsubishi International Food
Ingredients, Inc.
	 	52204445 filed 7/18/05
	 	 	 	Consignment (Maltose powder

owned by Secured Party)
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	National City Bank, as

Administrative Agent
	 	61310689 filed 4/19/06
	 	 	 	All Personal Property
	 
	 	 	 	 	 	 	 	 
	Delaware

	 	JP Morgan Trust Company, National

Association
	 	61319268 filed 4/19/06
	 	 	 	Blanket (subject to
Collateral Sharing Agreement)
	 
	 	 	 	 	 	 	 	 
	Illinois

	 	Marlin Leasing Corp
	 	004911636000 filed

3/13/02
	 	 	 	Leased CCTV Security System
	 
	 	 	 	 	 	 	 	 
	Illinois

	 	Mitsubishi International Corporation
	 	006962009 filed 5/6/03
	 	 	 	Consignment (Maltose powder

owned by Secured Party)
	 
	 	 	 	 	 	 	 	 
	Illinois

	 	GFC Leasing, a Division of Gordon
Flesch Co., Inc.
	 	009931015 filed 6/16/05
	 	 	 	Lease of Canon Imagerunner
	 
	 	 	 	 	 	 	 	 
	Illinois

	 	GFC Leasing, a Division of Gordon
Flesch Co., Inc.
	 	010824419 filed 4/5/06
	 	 	 	Lease of Laser Fax






Clear searches:




          Ohio




 









 






Ferro Color & Glass Corporation




	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	 	 	 	 	 	 	 	 
	Pennsylvania

	 	National City Bank
	 	2006042003365 filed

4/19/06
	 	 
	 	All Personal Property
	 
	 	 	 	 	 	 	 	 
	Pennsylvania

	 	JP Morgan Trust Company
	 	2006042003353 filed

4/19/06
	 	 	 	Blanket (subject to
Collateral Sharing Agreement)






Clear searches:




          Georgia

          Ohio





 











 






Ferro Finance Corporation





	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CitiCorp North America Inc.
	 	AP282387 filed 9/27/00
	 	Coll Amended

9/27/02

Coll Amended

5/28/03

Coll Amended

6/27/03

Partial Coll Release

6/27/03

Con’t 8/29/05
	 	Accounts Receivable Securitization
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CitiCorp North America Inc.
	 	AP282392 filed 9/27/00
	 	Coll Amended

9/27/02
	 	Accounts Receivable Securitization
	 

	 	 	 	 	 	Coll Amended
5/28/03

Coll Amended 

6/27/03

Partial Coll Release 

6/27/03

Con’t 8/29/05	 	 
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CitiCorp North America Inc.
	 	OH00064315659 filed

5/28/03
	 	Coll Amended

5/30/03

Coll Amended

6/27/03

Partial Coll Release

6/27/03
	 	Accounts Receivable Securitization
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CitiCorp North America Inc.
	 	OH00064315760 filed

5/28/03
	 	Coll Amended

5/30/03

Coll Amended

6/27/03

Partial Coll

Release 6/27/03
	 	Accounts Receivable Securitization







 









 









Ferro China Holdings Inc.




Clear searches:


          Ohio





 










 









Ferro International Services Inc.




Clear searches:


          Delaware




101307275, Ferro — UCC Search Results 05-12-06




 










 







FERRO CORPORATION

REFINANCING OF SENIOR CREDIT FACILITY




UCC SEARCH RESULTS CHART




Ferro Corporation

Ohio Only Results




	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	National City Bank
	 	AM50718 filed

2/20/96
	 	Assigned 1/13/97
Con’t 11/13/00

Con’t 9/7/05
	 	Equipment Schedule 001; Master Lease
Ref No. 115; Disk Drive
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Precious Metals Inc.
	 	AN42567 filed

2/24/97
	 	Con’t 9/10/01
	 	Consignment; gold, silver, platinum and
palladium inventory
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	E I Du Pont De Nemours and
Company
	 	AP0011225 filed

12/18/97
	 	Term 9/25/00

Con’t 12/13/02

????????	 	 
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company Inc.
	 	AP0124794 filed

2/17/99
	 	DB Amended

12/26/03
 Con’t
12/26/03
	 	Lease forklift truck
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company Inc.
	 	AP0124795 filed

2/17/99
	 	DB Amended

12/26/03
 Con’t
12/26/03
	 	Lease forklift truck
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company Inc.
	 	AP0124796 filed

2/17/99
	 	DB Amended

12/26/03
 Con’t
12/26/03
	 	Lease forklift trucks
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Konica Business Technologies Inc.
	 	AP0131706 filed

3/10/99
	 	Con’t 3/1/04
	 	Leased copiers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company Inc.
	 	AP0127960 filed

3/18/99
	 	Amended 6/1/99
Amended 1/29/04
Amended 1/29/04

Con’t 1/29/04
	 	Lease forklift trucks
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company Inc.
	 	AP0149250 filed
	 	Amended 3/15/01

Amended 2/17/04
	 	Lease forklift truck






 










 








	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	       
	 

	 	 	 	4/5/99
	 	Con’t 2/17/04	 	 
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Tennant Financial Services
	 	AP0136672 filed

4/26/99
	 	Con’t 12/16/03
	 	Leased battery sweeper
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Tennant Financial Services
	 	AP0262041 filed

8/15/00
	 	Con’t 6/23/05
	 	Leased scrubber
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CitiCorp North America, Inc., as agent
	 	 AP282393 filed

9/27/00
	 	Coll Amd 9/27/02

Coll Amd /28/03

Coll Amd 6/27/03

Part Rele 6/27/03

Con’t 8/29/05
	 	Blanket
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Leasing Corporation
	 	AP295865 filed

10/27/00
	 	Con’t 4/27/05
	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Mellon US Leasing
	 	AP335654 filed

5/9/01
	 	 	 	Leased certain equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Mellon US Leasing
	 	AP336233 filed

5/10/01
	 	 	 	Leased certain equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Mellon US Leasing
	 	AP336266 filed

5/10/01
	 	 	 	Leased certain equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Capital Leasing — Technology
Finance
	 	OH00035159814 filed

6/7/01
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Capital Leasing — Technology
Finance
	 	OH00035160160 filed

6/7/01
	 	 	 	Leased faxes
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Capital Leasing — Technology
Finance
	 	OH00035796773 filed

6/22/01
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Konica Business Technologies
	 	OH00035972515 filed

6/28/01
	 	 	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Marlin Leasing Corp.
	 	OH00036180860 filed

7/19/01
	 	 	 	Leased water purification systems







2












 






	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	Fleet Business Credit Corporation
	 	OH00037536159 filed

8/20/01
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit Corporation
	 	OH00037856985 filed

8/27/01
	 	 
	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Ervin Leasing Company
	 	OH00037920457 filed

8/29/01
	 	 	 	Leased plotter
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit Corporation
	 	OH00038077499 filed

8/31/01
	 	 	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	CIT Communications Finance

Corpration
	 	OH00038201373 filed

9/4/01
	 	 	 	Leased Avaya Inc. Definity G3S1
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ICX Corporation
	 	OH00038335801 filed

9/7/01
	 	 	 	Leased viewstation video conferencing system
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ICX Corporation
	 	OH00038336368 filed

9/7/01
	 	 	 	Leased s-video monitor, polycom viewstation
network equipment and stand
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Precious Metals Inc.
	 	OH00038384177 filed

9/10/01
	 	 	 	Consignment — gold, silver, platinum and
palladium inventory
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Foothill Capital Corporation
	 	OH00039452254 filed

10/2/01
	 	 	 	Raw materials and work in progress
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit Corporation
	 	OH00039494878 filed

10/4/01
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit Corporation
	 	OH00039525825 filed

10/5/01
	 	 	 	Leased finisher
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Ervin Leasing Co.
	 	OH00040538885 filed

10/29/01
	 	 	 	Leased panafax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ICX Corporation
	 	OH00040986187 filed

11/6/01
	 	 	 	Leased video conferencing system






3









 








	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	ICX Corporation
	 	OH00040986309 filed

11/6/01
	 	 	 	Leased video conferencing system
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ICX Corporation
	 	OH00041569164 filed

11/20/01
	 	 
	 	Leased video station, video monitor and stand
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
	 	OH00043324067 filed

12/31/01
	 	 	 	Leased faxes
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Raymond Leasing Corporation
	 	OH00043608231 filed

1/7/02
	 	 	 	Leased counterbalance, batteries, charges and reach
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Toyota Motor Credit Corp.
	 	OH00044288737 filed

1/22/02
	 	 	 	Leased forklift trucks
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	American Packaging Capital, Inc.
	 	OH00044485270 filed

1/25/02
	 	 	 	Leased stretch wrapper
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Co. Inc. DBA
Safeline Leasing
	 	OH00044532756 filed

1/28/02
	 	 	 	Leased boomlift
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ICX Corporation
	 	OH00045431632 filed

2/20/02
	 	 	 	Leased viewstation, monitor and cart
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Universal Process Equipment, Inc.
	 	OH00046180438 filed

3/8/02
	 	 	 	Leased bottom, discharge perforated basket centrifuge
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Toyota Motor Credit Corp.
	 	OH00046480131 filed

3/15/02
	 	 	 	Leased forklift
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
	 	OH00046561911 filed

3/18/02
	 	 	 	Leased copier and fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
	 	OH00046710423 filed

3/20/02
	 	 	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	SOM North America
	 	OH00047279761 filed

4/1/02
	 	 	 	Potassium nitrate and lithium carbonate






4









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	Toyota Motor Credit Corp.
	 	OH00047483956

filed 4/5/02
	 	 	 	Leased forklift
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
	 	OH00048024753 filed

4/17/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Relational Funding Corporation
	 	OH00048929579 filed

5/2/02
	 	 	 	Capitalized tax, Definity wire, Definity SRU size
sensitivity, CKT card analog line, Definity tape
G3, Definity software and other Definity equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Raymond Leasing Corporation
	 	OH00049753193 filed

5/24/02
	 	 	 	Exide batteries
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services Inc
	 	OH00050397594 filed

6/10/02
	 	 	 	All leased equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Relational Funding Corporation
	 	OH00050798433 filed

6/19/02
	 	Assigned 8/7/02
	 	Leased computer equipment software under Equipment
Schedule 001
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00051881693 filed

7/15/02
	 	 	 	Leased notebook/laptop, monitor, scanner and printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC 

Konica Business Technologies, Inc.
	 	OH00051981827 filed

7/17/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00052125612 filed

7/19/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00052336215 filed

7/25/02
	 	 	 	Leased miscellaneous equipment and server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC 

Konica Business Technologies, Inc.
	 	OH00052531401 filed

7/30/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC 

Konica Business Technologies, Inc.
	 	OH00052622303 filed

8/1/02
	 	 	 	Leased copier






5









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit Corporation
	 	OH00052632425 filed

8/1/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH000526282925

filed 8/2/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Equistar Chemicals, LP
	 	OH00053141607 filed

8/14/02
	 	Coll Amended 9/13/04
	 	Polyolefin resin product
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Raymond Leasing Corporation
	 	OH00053345881 filed

8/19/02
	 	 	 	Leased counter balance, exide batteries and exide charger
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00053517341 filed

8/23/02
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00053518686 filed

8/23/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00053764506 filed

8/30/02
	 	 	 	Leased notebook/laptop, monitor, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00054080294 filed

9/10/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00054150162 filed

9/12/02
	 	 	 	Leased zebra printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00054362888 filed

9/17/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00054456605 dated

9/20/02
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00054533881 filed

9/23/02
	 	 	 	Leased printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Relational Funding Corporation
	 	OH00054581589 filed

9/24/02
	 	Assigned 1/30/03
	 	Leased certain computer equipment, software and other
assets






6









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	Fleet Business Credit, Inc.
Konica Business Technologies, Inc.
	 	OH00054583381 filed

9/24/02
	 	Terminated 10/21/02	 	 
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00054830669 filed

10/1/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00054881060 filed

10/2/02
	 	 	 	Leased faxes
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services, Inc.
	 	OH00056083131 filed

10/31/02
	 	 	 	All equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00056126880 filed

11/1/02
	 	 	 	Leased notebook/laptop, monitor, scanner and printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00056214978 filed

11/4/02
	 	 	 	Leased notebook/laptop, monitor, scanner and printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00056495104 filed

11/12/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, Inc.
Konica Business Technologies, Inc.
	 	OH00056501078 filed

11/12/02
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00056751592 filed

11/18/02
	 	 	 	Leased notebook/laptop, scanner
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00056941161 filed

11/21/02
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00057241431 filed

12/2/02
	 	 	 	Leased server, desktop, notebook/laptop,

miscellaneous equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00057249851 filed

12/2/02
	 	 	 	Leased copier






7









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit Corporation
	 	OH00057852294 filed

12/13/02
	 	 	 	Leased monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00058059293 filed

12/18/02
	 	 
	 	Leased notebook/laptop, desktop monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00058299695 filed

12/26/02
	 	 	 	Leased notebook/laptop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit Corporation
	 	OH00058503458 filed

1/2/03
	 	 	 	Leased notebook/laptop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00058635295 filed

1/6/06
	 	 	 	Leased notebook/laptop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00058753316 filed

1/8/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00058853217 filed

1/9/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00058998768 filed

1/14/03
	 	 	 	Leased faxes
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00059094521 filed

1/16/03
	 	 	 	Leased printers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, Inc.
Konica Business Technologies, Inc.
	 	OH00059515505 filed

1/30/03
	 	 	 	Leased fax
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Standard Bank London Limited
	 	OH00059543625 filed

1/30/03
	 	 	 	Platinum, palladium and rhodium
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00059856698 filed

2/10/03
	 	 	 	Leased copier






8









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit, Inc.
	 	OH00060029072 filed

2/13/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00060192532 filed

2/19/03
	 	 
	 	Leased notebook/laptop, server, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Toyota Motor Credit Corporation
	 	OH00060350265 filed

2/24/03
	 	 	 	Leased Toyota, forks, backup alarm
	Ohio

	 	IBM Credit LLC
	 	OH00060521591 filed

2/28/03
	 	 	 	Leased desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00060725220 filed

3/6/03
	 	 	 	Leased notebook/laptop, desktop, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00060953031 filed

3/11/03
	 	 	 	Leased printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00061054066 filed

3/14/03
	 	 	 	Leased notebook/laptop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00061759979 filed

4/1/03
	 	 	 	Leased notebook/laptop, desktop, monitor,
scanner and printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Rhodia Inc.
	 	OH00061869770 filed

4/3/03
	 	 	 	Consigned inventory and proceeds
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00061947857 filed

4/7/03
	 	 	 	Leased desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00062101442 filed

4/9/03
	 	 	 	Leased monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00062321488 filed

4/14/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00062511946 filed

4/18/03
	 	 	 	Leased monitor







9











 






	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00062858324

filed 4/25/03
	 	 
	 	Leased notebook/laptop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC

Konica Business Technologies, Inc.
	 	OH00063179628

filed
5/1/03
	 	 	 	Leased copiers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Raymond Leasing Corporation
	 	OH00063214476

filed
5/2/03
	 	 	 	Leased counter balance, batteries, charger
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC 

Konica Business Technologies, Inc.
	 	OH00063217761

filed
5/2/03
	 	 	 	Leased copiers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00063277383

filed
5/5/03
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Rhodia Electronics & Catalysis
	 	OH00063329364

filed
5/5 03
	 	 	 	Rhodia electronics and catalysis consigned
inventory and proceeds
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC


Konica Business Technologies, Inc.
	 	OH00063383580

filed
5/6/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH0063539400

filed
5/9/03
	 	 	 	Leased notebook/laptop, desktop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00063572581

filed
5/12/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00063793751

filed
5/15/03
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00063795775

filed
5/15/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00064059605

filed
5/21/03
	 	 	 	Leased notebook/laptop, desktop, monitor






10









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00064070962
filed 5/21/03
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Citicorp North American, Inc.
	 	OH00064315437

filed 5/28/03
	 	Coll Amend 5/30/03 Coll

Amend 6/27/03 Part Rel

6/27/03
	 	Blanket
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00064491489

filed 6/2/03
	 	 	 	Leased desktop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00064806711

filed 6/9/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00064941484

filed 6/11/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00065183144

filed 6/17/03
	 	 	 	Leased server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00065391599

filed 6/23/03
	 	 	 	Leased printer, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00065786132

filed 7/1/03
	 	 	 	Leased notebook/laptop, monitor, miscellaneous equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00066031518

filed 7/9/03
	 	 	 	Leased notebook/laptop, server, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH00066264379

filed 7/15/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00066289907

filed 7/16/03
	 	 	 	Leased printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC
Konica Business Technologies, Inc.
	 	OH 00066818102

filed 7/30/03
	 	 	 	Leased copier
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	First Merit Bank
	 	OH00067410755

filed 8/14/03
	 	 	 	Leased forklifts






11









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	First Merit Bank
	 	OH00067411090

filed 8/14/03
	 	 	 	Leased forklifts
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Farrel Corporation
	 	OH00067787166

filed 8/25/03
	 	 	 	Leased Banbury mixer body
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00068679178

filed 9/19/03
	 	 	 	Leased notebook/laptop, desktop, monitor, scanner and
printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00068798201

filed 9/24/03
	 	 	 	Leased desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00068938603

filed 9/29/03
	 	 	 	Leased notebook/laptop, desktop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00069128627

filed 10/2/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH000692167I5

filed 10/6/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00070907925

filed 11/19/03
	 	 	 	Leased notebook/laptop, desktop, server, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00070999049

filed 11/21/03
	 	 	 	Leased notebook/laptop, server, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00071143845

filed 11/25/03
	 	 	 	Leased notebook/laptop, monitor, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	De Lage Landen Financial
Services, Inc.	 	OH00071181865
  filed 11/26/03
	 	Coll amend 3/23/04

Part Assgn 3/23/04
	 	All good leased from Relational Funding Corporation
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00071335438

filed 12/2/03
	 	 	 	Leased notebook/laptop






12









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	Raymond Leasing Corporation
	 	OH00071392680

filed 12/3/03
	 	 
	 	Certain leased exide equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00071669879

filed 12/10/03
	 	 	 	Leased notebook/laptop, server, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00072005046

filed 12/18/03
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company, Inc.
	 	OH00072311489

filed 12/29/03
	 	 	 	Leased forklift truck
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company, Inc.
	 	OH00072311712

filed 12/29/03
	 	 	 	Leased forklift trucks
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00072369298

filed 12/30/03
	 	 	 	Leased notebook/laptop, desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00072450534

filed 1/2/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00072628167

filed 1/7/04
	 	 	 	Leased notebook/laptop, desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services, Inc.
	 	OH00072754053

filed 1/12/04
	 	 	 	All equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00072956980

filed 1/15/04
	 	 	 	Leased notebook/laptop, server, hard drive, tape drive
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Safeco Credit Company, Inc.
	 	OH00073339498

filed 1/29/04
	 	 	 	Leased forklift trucks
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00073368075

filed 1/30/04
	 	 	 	Leased desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00073578444

filed 2/4/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 





13









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00073874654

filed 2/13/04
	 	 	 	Leased notebook/laptop, desktop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074104391

filed 2/20/04
	 	 	 	Leased notebook/laptop, desktop, monitor, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Channel-Prime Alliance LLC
	 	OH00074013055

filed 2/23/04
	 	SP Amend 9/17/04
	 	Consigned or sold plastic resins
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074132522

filed 2/23/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074334126

filed 2/27/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074455384

filed 3/2/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074637744

filed 3/8/04
	 	 	 	Leased notebook/laptop, desktop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services, Inc.
	 	OH00074821028

filed 3/15/04
	 	 	 	All equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00074843620

filed 3/15/04
	 	 	 	Leased desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH 00075218818

filed 3/23/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LL
	 	OH00075420867

filed 3/29/04
	 	 	 	Leased notebook/laptop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00075582304

filed 4/1/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00075713696

filed 4/5/04
	 	 	 	Leased tape drive
	 
	 	 	 	 	 	 	 	 





14









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00075917981

filed 4/9/04
	 	 
	 	Leased notebook/laptop, desktop, server, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Mitsubishi International Corporation
	 	OH00076214114

filed 4/19/04
	 	 	 	All metal
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00076280365

filed 4/20/04
	 	 	 	Leased notebook/laptop, desktop, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00076453837

filed 4/23/04
	 	 	 	Leased notebook/laptop, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00076620458

filed 4/28/04
	 	 	 	Leased notebook/laptop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00076644630

filed 4/29/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00076850405

filed 5/4/04
	 	 	 	Leased desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00077423582

filed 5/19/04
	 	 	 	Leased notebook/laptop, desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00077652416

filed 5/25/04
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Stone Container Corporation
	 	OH00077706411

filed 5/26/04
	 	 	 	Leased clean-pak, clean-pak interface, applicator,
end-of-arm tool, conveyors, flattener, checkweigher,
system controls, robot riser, slip sheet magazine,
pallet dispenser, robot, patrionplus printer,
stretchwrapper
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00078104991

filed on 6/7/04
	 	 	 	Leased notebook/laptop, monitor, miscellaneous equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Wells Fargo Financial Leasing
	 	OH00078196560

filed 6/8/04
	 	 	 	Leased telephone system






15









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00078342046

filed 6/14/04
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00078738580

filed 6/23/04
	 	 	 	Leased notebook/laptop, desktop, monitor, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Ciba Specialty Chemicals Corporation
	 	OH00078972364

filed 6/29/04
	 	 	 	Products listed in Consignment Agreement
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00079115036

filed 7/2/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00079488954

filed 7/15/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Palm Commodities International, Inc.
	 	OH00079628134

filed 7/19/04
	 	SP Assign 5/9/05
	 	Chemicals, metals and other plating supplies
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00079781027

filed 5/9/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	ILE Leasing, Inc.
	 	OH00079946613

filed 7/27/04
	 	 	 	Leased forklifts
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00080041921

filed 7/30/04
	 	 	 	Leased desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00080171188

filed 8/3/04
	 	 	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00080697112

filed 8/19/04
	 	 	 	Leased notebook/laptop, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00080942143

filed 8/26/04
	 	 	 	Leased notebook/laptop, desktop, monitor, server
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00081181766

filed 9/2/04
	 	 	 	Leased notebook/laptop, monitor






16









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00081379755

filed 9/9/04
	 	 
	 	Leased notebook/laptop, desktop, monitor, miscellaneous

equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00081634919

filed 9/20/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00081813909

filed 9/24/04
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00081962176

filed 9/29/04
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	The Bank of Nova Scotia
	 	OH00081988938

filed 9/29/04
	 	 	 	Certain gold, platinum, palladium and/or silver (“Bullion”)
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00082174358

filed 10/5/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00082465830

filed 10/14/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00082954756

filed 10/28/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00083052311

filed 11/1/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC

Konica Business Technologies, Inc.
	 	OH00083122067
 filed 11/2/04
	 	 	 	Leased copiers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Fleet Business Credit, LLC

Konica Business Technologies, Inc.
	 	OH00083122289
  filed 11/2/04
	 	 	 	Leased copiers
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00083605021

filed 11/17/04
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00083815945
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 






17











 






	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00084168296
 filed
12/3/04
	 	 	 	Leased notebook/laptop, desktop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00084317031
 filed
12/8/04
	 	 
	 	Leased notebook/laptop
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00084787268
 filed
12/21/04
	 	 	 	Leased notebook/laptop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00085217929
 filed
1/4/05
	 	 	 	Leased notebook/laptop, monitor, printer
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Marlin Leasing Corp.
	 	OH 00085664097

filed 1/18/05
	 	 	 	Leased LVC copier, doc feeders, sheet drawer, prt/scan
system,
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00086030075
 filed
1/31/05
	 	 	 	Leased notebook/laptop, desktop, monitor, router/bridges
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00086146616 
filed
2/3/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00086502905
 filed
2/16/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00086566454 
filed
2/18/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00086738803 
filed
2/24/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00087024891
 filed
3/7/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00087199719 
filed
3/11/05
	 	 	 	Leased notebook/laptop, desktop, monitor






18









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00087486708

filed 3/21/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Heracus Precious

Metals Management,

LLC
	 	OH00087562861

filed 3/22/05
	 	 
	 	Precious metals
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00087621938

filed 3/24/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00087700138

filed 3/28/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088016148

filed 4/5/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088016704

filed 4/5/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088052811

filed 4/6/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088384905

filed 4/15/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088689436

filed 4/25/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00088969773

filed 5/2/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00089074868

filed 5/4/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00089249809

filed 5/9/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00089569524

filed 5/18/05
	 	 	 	Leased notebook/laptop, desktop, monitor






19









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00089718369

filed 5/23/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00090146006

filed 6/6/05
	 	 
	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Toyota Motor Credit Corporation
	 	OH00090131823

filed 6/7/05
	 	 	 	Leased fork lifts
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00090640761

filed 6/21/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00091013379

filed 7/1/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00091045982

filed 7/5/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services, Inc.
	 	OH00091981198

filed 8/4/05
	 	 	 	All equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00092212847

filed 8/10/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00092410847

filed 8/17/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00092639982

filed 8/25/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00092995269

filed 9/6/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00093155149

filed 9/12/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00093223104

filed 9/13/05
	 	 	 	Leased notebook/laptop, desktop, monitor






20









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH000937241666

filed 9/27/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00093744300
 filed
9/28/05
	 	 
	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00093920708 
filed
10/3/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00093974579
 filed
10/4/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00094892910
 filed
10/28/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00095277775
 filed
11/7/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00095370268 
filed
11/8/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00095539125 
filed
11/14/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00095938373
 filed
11/23/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	HSBC Bank USA, National Association
	 	 OH00096578835
 filed
12/12/05
	 	 	 	Precious metals
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00096873366
 filed
12/20/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00096947505
 filed
12/22/05
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00097480970 
filed
1/6/06
	 	 	 	Leased notebook/laptop, desktop, monitor






21









 







	 	 	 	 	 	 	 	 	 
	Filing Jurisdiction	 	Secured Party	 	UCC-1 File No.	 	History	 	Collateral
	 
	Ohio

	 	IBM Credit LLC
	 	OH00097638147

filed 1/11/06
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00098156328

filed 1/27/06
	 	 
	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	PB Financial Services, Inc.
	 	OH00098259811

filed 1/31/06
	 	 	 	Metals
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	NMHG Financial Services, Inc.
	 	OH00098774611

filed 2/15/06
	 	 	 	All equipment
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00098824234

filed 2/16/06
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	IBM Credit LLC
	 	OH00098881153

filed 2/17/06
	 	 	 	Leased notebook/laptop, desktop, monitor
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Solvay Chemicals, Inc.
	 	OH00099053957

filed 2/24/06
	 	 	 	Consigned inventory
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Toyota Motor Credit Corporation
	 	OH00099593618

filed 3/10/06
	 	 	 	Leased lift truck
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	National City Bank, as

Administrative Agent
	 	OH00101077629

filed 4/19/06
	 	 	 	Personal property
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	J.P. Morgan Trust Company, National
Association
	 	OH00101129600

filed 4/20/06
	 	 	 	Blanket
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	Farrel Corporation
	 	OH00101245818

filed 4/24/06
	 	 	 	Leased mixer body
	 
	 	 	 	 	 	 	 	 
	Ohio

	 	General Electric Capital Corporation
	 	OH00101312083

filed 4/26/06
	 	 	 	All equipment






     101314224, Ferro — UCC Ohio Search Results 05-22-06




22











 






SCHEDULE II




PERCENTAGES;

LIBOR OFFICE;

DOMESTIC OFFICE





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PERCENTAGES
	NAME AND NOTICE	 	 	 	 	 	REVOLVING LOAN	 	TERM LOAN
	ADDRESS OF LENDER	 	LIBOR OFFICE	 	DOMESTIC OFFICE	 	COMMITMENT	 	COMMITMENT
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	National City Bank

	 	National City Bank
	 	National City Bank
	 	 	22.20000000	%	 	 	 	 
	1900 East Ninth Street

	 	1900 East Ninth Street
	 	1900 East Ninth Street	 	 	 	 	 	 	 	 
	Cleveland, OH 44114

	 	Cleveland, OH 44114
	 	Cleveland, OH 44114	 	 	 	 	 	 	 	 
	Facsimile No.: (216) 222-9396
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Robert S. Coleman
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Suisse, Cayman Islands Branch

	 	Credit Suisse, Cayman Islands Branch
	 	Credit Suisse, Cayman Islands Branch
	 	 	18.20000000	%	 	 	100.000000000	%
	Eleven Madison Avenue

	 	Eleven Madison Avenue
	 	Eleven Madison Avenue	 	 	 	 	 	 	 	 
	New York, NY 10010-3629

	 	New York, NY 10010-3629
	 	New York, NY 10010-3629	 	 	 	 	 	 	 	 
	Facsimile No.: (212) 325-8321
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Brian T. Caldwell
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	KeyBank National Association

	 	KeyBank National Association
	 	KeyBank National Association
	 	 	16.00000000	%	 	 	 	 
	127 Public Square, 6th Floor

	 	127 Public Square, 6th Floor
	 	127 Public Square, 6th Floor	 	 	 	 	 	 	 	 
	Cleveland, Ohio 44114

	 	Cleveland, Ohio 44114
	 	Cleveland, Ohio 44114	 	 	 	 	 	 	 	 
	Facsimile No.: (216) 689-4649
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Brian Fox
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Citicorp North America, Inc.

	 	Citicorp North America, Inc.
	 	Citicorp North America, Inc.
	 	 	10.00000000	%	 	 	 	 
	388 Greenwich Street, 21st floor

	 	388 Greenwich Street, 21st floor
	 	388 Greenwich Street, 21st floor	 	 	 	 	 	 	 	 
	New York, NY 10013

	 	New York, NY 10013
	 	New York, NY 10013	 	 	 	 	 	 	 	 
	Facsimile No.: (646) 291-1817
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Daniel H. Gouger
	 	 	 	 	 	 	 	 	 	 	 	 






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PERCENTAGES
	NAME AND NOTICE	 	 	 	 	 	REVOLVING LOAN	 	TERM LOAN
	ADDRESS OF LENDER	 	LIBOR OFFICE	 	DOMESTIC OFFICE	 	COMMITMENT	 	COMMITMENT
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Fifth Third Bank

	 	Fifth Third Bank
	 	Fifth Third Bank
	 	 	10.000000000	%	 	 	 	 
	600 Superior Avenue East

	 	600 Superior Avenue East
	 	600 Superior Avenue East	 	 	 	 	 	 	 	 
	Cleveland, OH 44114

	 	Cleveland, OH 44114
	 	Cleveland, OH 44114	 	 	 	 	 	 	 	 
	Facsimile No.: (216) 274-5507
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Roy C. Lanctot
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	JPMorgan Chase Bank, N.A.
	 	JPMorgan Chase Bank, N.A.
	 	 	10.00000000	%	 	 	 	 
	One Oxford Centre

	 	One Oxford Centre
	 	One Oxford Centre	 	 	 	 	 	 	 	 
	301 Grant Street, Suite 1100

	 	301 Grant Street, Suite 1100
	 	301 Grant Street, Suite 1100	 	 	 	 	 	 	 	 
	Facsimile No.: (312) 385-7096
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Shawuana Simmons
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	LaSalle Bank National Association

	 	LaSalle Bank National Association
	 	LaSalle Bank National Association
	 	 	6.000000000	%	 	 	 	 
	1300 E. 9th Street, #1000

	 	1300 E. 9th Street, #1000
	 	1300 E. 9th Street, #1000	 	 	 	 	 	 	 	 
	Cleveland, OH 44114

	 	Cleveland, OH 44114
	 	Cleveland, OH 44114	 	 	 	 	 	 	 	 
	Facsimile No.: (216) 802-2212
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Patrick F. Dunphy
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	FirstMerit Bank, N.A.

	 	FirstMerit Bank, N.A.
	 	FirstMerit Bank, N.A.
	 	 	5.600000000	%	 	 	 	 
	101 West Prospect Avenue, Suite 350

	 	101 West Prospect Avenue, Suite 350
	 	101 West Prospect Avenue, Suite 350	 	 	 	 	 	 	 	 
	Cleveland, OH 44115

	 	Cleveland, OH 44115
	 	Cleveland, OH 44115	 	 	 	 	 	 	 	 
	Facsimile No.: (216) 802-6514
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Jonathan M. Isaacs
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of New York

	 	 	 	 	 	 	2.00000000	%	 	 	 	 
	One Wall Street, 21st Floor
	 	 	 	 	 	 	 	 	 	 	 	 
	New York, NY 10286
	 	 	 	 	 	 	 	 	 	 	 	 
	Facsimile No.: (212) 635-1066
	 	 	 	 	 	 	 	 	 	 	 	 
	Attention: Kenneth R. McDonnell
	 	 	 	 	 	 	 	 	 	 	 	 







 









 








SCHEDULE III




MORTGAGED PROPERTIES




1200 Melrose, Waukegan, ILL

1301 North Flora Street, Plymouth, IN

7050 Krick Road, Bedford, OH

1000 and 1636 Wayside Ave.Cleveland, OH

1560 Main Street, Orrville, OH

1000 Lakeside Ave, Cleveland, OH

7500 E. Pleasant Valley Road, Independence, Ohio

54 Kellog Court, Edison, NJ

4150 E. 56th Street, Cleveland, Ohio

3 Railroad Avenue, Stryker, Ohio

1789 Transelco Drive, Pen Yan, NY

510 E. Central Avenue, Fort Worth, Texas

1200 Gladstone Bldg 4, Waukegan, Ill

1200 Gladstone Bldg 4A/4B, Waukegan, Ill

1200 Gladstone Bldg 5, Waukegan, Ill

1200 Gladstone Bldg 6A, Waukegan, Ill

1200 Gladstone Bldg 7, Waukegan, Ill

1321 Glen Rock, Waukegan, Ill

1413 Glen Rock, Waukegan, Ill

1415 Glen Rock, Waukegan, Ill

3900 S. Clinton Road, Building B, South Plainfield, NJ

2495 S. Clinton Road Building E, South Plainfield, NJ

2501 S. Clinton Building F, South Plainfield, NJ

West Wylie Ave, Washington, PA

Peters Road, Evansville, IN

5001 Ohara, Evansville, IN





 











 





SCHEDULE IV




FOREIGN SUBSIDIARIES




	 	 	 
	Zibo Ferro Performance Materials Company, Limited (70%)*

	 	Peoples Republic of China
	Ferro Colores S.A. de C.V**.

	 	Mexico
	Ferro Argentina SA

	 	Argentina
	Ferro Corporation (Australia) Pty Ltd

	 	Australia
	Ferro Enamel do Brasil Industria e Comercio Ltda.

	 	Brazil
	Ferro Industrial Products Ltd

	 	Canada
	Ferro Holding GmbH

	 	Germany
	PT Ferro Mas Dinamika (95%)

	 	Indonesia
	Ferro Japan K.K

	 	Japan
	Ferro Far East Ltd

	 	Hong Kong
	Ferro Mexicana SA de CV

	 	Mexico
	Ferro (Suzhou) Performance Materials Co. Ltd.

	 	Peoples Republic of China
	Ferro Taiwan Ltd

	 	Taiwan
	Ferro Spain SA

	 	Spain
	Ferro (Thailand) Co. Ltd.

	 	Thailand
	Ferro de Venezuela CA (51%)

	 	Venezuela
	Ferro (Great Britain) Ltd

	 	United Kingdom
	Ferro BV

	 	(Netherlands)








 




			
	*	 	Subsidiary of Ferro China Holdings Inc.
	 
	**	 	Subsidiary of Ferro Color & Glass Corporation