exv10w1






Exhibit 10.1




AMENDED AND RESTATED 

CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT is made as of the 18th day of November, 2009 by and
among:



(i) LINCOLN ELECTRIC HOLDINGS, INC., an Ohio corporation (“Holdings”), THE LINCOLN ELECTRIC
COMPANY, an Ohio corporation (“Lincoln”), LINCOLN ELECTRIC INTERNATIONAL HOLDING COMPANY, a
Delaware corporation (“International”), J.W. HARRIS CO., INC., an Ohio corporation and successor by
merger to Harris Calorific, Inc. (“Harris”), VERNON TOOL CO., LTD. a Delaware corporation
(“Vernon”) and LINCOLN GLOBAL, INC., a Delaware corporation (“Global” and with Vernon, Harris,
International, Lincoln and Holdings, each a “Borrower” and, collectively, the “Borrowers”);



(ii) The financial institutions named in Annex A attached hereto and made a part hereof and their
successors and assigns (hereinafter sometimes collectively called the “Lenders” and each
individually a “Lender”); and



(iii) KEYBANK NATIONAL ASSOCIATION, a national banking association, in its capacity as letter of
credit issuer and its successors and assigns (the “Letter of Credit Issuer”); and



(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the
Lenders under this Agreement (hereinafter sometimes called the “Agent”).



Recitals:




     The Borrowers (other than Vernon), the Letter of Credit Issuer, the Agent and the Lenders are
the parties to the Existing Credit Agreement (defined below).



     The Borrowers have requested the Lenders to permit Vernon to join as a Borrower, to extend
credit to the Borrowers in order to enable the Borrowers to borrow on a revolving credit basis and
to have letters of credit issued at their request, on and after the date hereof and at any time and
from time to time during the Commitment Period (defined below), in an aggregate principal amount
not in excess of the Total Commitment Amount at any time outstanding. The proceeds of such loans
and letters of credit are to be used (a) for the general corporate working capital purposes of
Holdings and its Subsidiaries and (b) for other general corporate purposes, including, without
limitation, but subject to the terms and conditions hereinafter set forth, the acquisition of other
businesses. The Lenders are willing to extend such credit to the Borrowers on the terms and
subject to the conditions herein set forth.



Agreements:




     NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements
hereinafter set forth, the Borrowers, the Lenders and the Agent hereby agree as follows:



 









 





ARTICLE 1

DEFINITIONS




     SECTION 1.1 Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:



     “Accrual Period” shall mean (i) the period commencing with the first day of the
Commitment Period and ending on the close of business November 30, 2009, and (ii) thereafter, each
of the following successive periods during the Commitment Period commencing with each, as the case
may be, Fee Adjustment Date or Interest Adjustment Date during the Commitment Period, commencing
with the Fee Adjustment Date and Interest Adjustment Date which is December 1, 2009:



          December 1 through March 31, inclusive




          April 1 through May 31, inclusive




          June 1 through August 31, inclusive




          September 1 through November 30, inclusive.




     “Acquisition” shall mean and include (i) any acquisition on a going concern basis
(whether by purchase, lease or otherwise) of any facility and/or business operated by any Person
who is not a Subsidiary of Holdings, and (ii) any acquisition of a majority of the outstanding
equity or other similar interests in any such Person (whether by merger, stock purchase or
otherwise).



     “Adjusted LIBOR” shall mean a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the nearest 1/100th of 1%) by dividing (i) the applicable LIBOR
by (ii) 1.00 minus the Reserve Percentage, and which Adjusted LIBOR shall be automatically
adjusted on and as of the effective date of any change in the Reserve Percentage.



     “Advantage” shall mean any payment (whether made voluntarily or involuntarily, by
offset of any deposit or other indebtedness or otherwise) received by any Lender in respect of the
Obligations owing by the Borrowers to the Lenders if such payment results in that Lender having a
lesser share (based upon its Ratable Share) of such Obligations to the Lenders than was the case
immediately before such payment.



     “Affiliate” shall mean, with respect to any Person, any other person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person.
A Person shall be deemed to control a second Person if such first Person possesses, directly or
indirectly, the power (i) to vote 50% or more of the securities having ordinary voting power for
the election of directors or managers of such second Person or (ii) to direct or cause the
direction of the management and policies of such second Person, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the foregoing, (x) a director,
officer or employee of a Person shall not, solely by reason of such status, be considered an
Affiliate of such Person; and (y) none of the Lenders, the Agent, or the Letter of Credit Issuer
shall in any event be considered to be an Affiliate of Holdings or any of its Subsidiaries.



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     “Agent” has the meaning assigned to such term in the preamble of this Agreement and
any successor thereto pursuant to Section 13.



     “Agreement” shall mean this Amended and Restated Credit Agreement, as the same may
from time to time be further amended, supplemented, restated or otherwise modified.



     “Anniversary Date” shall mean the date which is one (1) year after the Restatement
Date (which Restatement Date the Agent shall confirm to the Borrowers in writing, and which the
Borrowers shall acknowledge in writing) occurs and each successive anniversary of such date
thereafter.



     “Anti-Terrorism Laws” shall mean any laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA Patriot Act, the laws comprising or implementing the
Bank Secrecy Act, and the laws administered by the United States Treasury Department’s Office of
Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed,
extended, or replaced).



     “Applicable Fee Percentage” shall mean, on each day of any Accrual Period, with
respect to any Facility Fee,



     (i) commencing on the first day of the Commitment Period and continuing through and
including November 30, 2009, twenty (20) Basis Points per annum, and



     (ii) effective on the Fee Adjustment Date which is December 1, 2009 and on each Fee
Adjustment Date thereafter, the Basis Points per annum indicated in the following table
corresponding to Holdings’ Net Leverage Ratio as of the Fee Determination Date for each such
Fee Adjustment Date:



	 	 	 
	Net Leverage Ratio:	 	Applicable Fee Percentage (in Basis Points):
	Equal to or greater than 2.50 to 1

	 	Fifty (50)
	 
	 	 
	Less than 2.50 to 1, but equal to
or greater than 2.00 to 1

	 	Forty (40)
	 
	 	 
	Less than 2.00 to 1, but equal to
or greater than 1.50 to 1

	 	Thirty (30)
	 
	 	 
	Less than 1.50 to 1, but equal to
or greater than 1.00 to 1

	 	Twenty-five (25)
	 
	 	 
	Less than 1.00 to 1

	 	Twenty (20);





provided, however, that, (a) at any and all times during which the Borrowers are in default of the
timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as
the




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case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying the
Net Leverage Ratio, the Applicable Fee Percentage shall be Fifty (50) Basis Points, and (b) the
accrual of fees based upon the Applicable Fee Percentage pursuant to clause (a) of this proviso
shall not be construed to waive any Event of Default which may exist by reason of such failure or
limit any right or remedy of the Agent or the Lenders.




     “Applicable LIBOR Percentage” shall mean, on each day of any Accrual Period with
respect to any LIBOR Loans comprising a Revolving Credit Borrowing,



     (i) commencing on the first day of the Commitment Period and continuing through and
including November 30, 2009, Two Hundred (200) Basis Points per annum, and



     (ii) effective on the Interest Adjustment Date which is December 1, 2009 and on each
Interest Adjustment Date thereafter, the Basis Points per annum indicated in the applicable
table below corresponding to Holdings’ Net Leverage Ratio as of the Interest Determination
Date for each such Interest Adjustment Date:



	 	 	 
	 	 	Applicable LIBOR
	Net Leverage Ratio:	 	Percentage (in Basis Points):
	Equal to or greater than 2.50 to 1

	 	Three Hundred (300)
	 
	 	 
	Less than 2.50 to 1, but equal to
or greater than 2.00 to 1

	 	Two Hundred Seventy-Five (275)
	 
	 	 
	Less than 2.00 to 1, but equal to
or greater than 1.50 to 1

	 	Two Hundred Fifty (250)
	 
	 	 
	Less than 1.50 to 1, but equal to
or greater than 1.00 to 1

	 	Two Hundred Twenty-Five (225)
	 
	 	 
	Less than 1.00 to 1

	 	Two Hundred (200)





provided, however, that, (a) at any and all times during which the Borrowers are in default of the
timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as
the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying
the Net Leverage Ratio, the Applicable LIBOR Percentage shall be Three Hundred (300) Basis Points,
and (b) the accrual of interest based upon the Applicable LIBOR Percentage pursuant to clause (a)
of this proviso shall not be construed to waive any Event of Default which may exist by reason of
such failure or limit any right or remedy of the Agent or the Lenders.




     “Applicable Prime Rate Percentage” shall mean, on each day of any Accrual Period with
respect to any Prime Rate Loans comprising a Revolving Credit Borrowing,



     (i) commencing on the first day of the Commitment Period and continuing through and
including November 30, 2009, One Hundred (100) Basis Points per annum, and



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     (ii) effective on the Interest Adjustment Date which is December 1, 2009 and on each
Interest Adjustment Date thereafter, the Basis Points per annum indicated in the applicable
table below corresponding to Holdings’ Net Leverage Ratio as of the Interest Determination
Date for each such Interest Adjustment Date:



	 	 	 
	 	 	Applicable Prime Rate
	Net Leverage Ratio:	 	Percentage (in Basis Points):
	Equal to or greater than 2.50 to 1

	 	Two Hundred (200)
	 
	 	 
	Less than 2.50 to 1, but equal to
or greater than 2.00 to 1

	 	One Hundred Seventy-Five (175)
	 
	 	 
	Less than 2.00 to 1, but equal to
or greater than 1.50 to 1

	 	One Hundred Fifty (150)
	 
	 	 
	Less than 1.50 to 1, but equal to
or greater than 1.00 to 1

	 	One Hundred Twenty-Five (125)
	 
	 	 
	Less than 1.00 to 1

	 	One Hundred (100)





provided, however, that, (a) at any and all times during which the Borrowers are in default of the
timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as
the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying
the Net Leverage Ratio, the Applicable Prime Rate Percentage shall be Two Hundred (200) Basis
Points, and (b) the accrual of interest based upon the Applicable Prime Rate Percentage pursuant to
clause (a) of this proviso shall not be construed to waive any Event of Default which may exist by
reason of such failure or limit any right or remedy of the Agent or the Lenders.




     “Banking Day” shall mean a day of the year on which banks are not required or
authorized to close in Cleveland, Ohio and New York, New York; provided, however, that, when used
in connection with a LIBOR Loan, “Banking Day” shall mean any such day on which banks are open for
dealings in or quoting deposit rates for dollar deposits in the London interbank market.



     “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et. seq.)
or any replacement, supplemental, successor or similar statute dealing with the bankruptcy of
debtors.



     “Basis Point” shall mean one one-hundredth of one percent (0.01%).



     “Blocked Person” shall have the meaning assigned to such term in Section 10.13 hereof.



     “Borrower” and “Borrowers” has the meaning assigned to such term in the
preamble of this Agreement.



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     “Borrower Property” shall mean any real property and improvements owned, leased, used,
operated or occupied by any Borrower or any of their respective corporate predecessors, including
any soil, surface water or groundwater on or under such real property and improvements.



     “Capitalized Leases” shall mean, in respect of any Person, any lease of property
imposing obligations on such Person, as lessee of such property, which are required in accordance
with GAAP to be capitalized on a balance sheet of such Person.



     “Cash Equivalent” shall mean (a) any debt instrument that would be deemed a cash
equivalent in accordance with GAAP and that has an investment grade rating from Moody’s and/or S&P;
(b) fully collateralized repurchase agreements entered into with any financial institution that has
an investment grade rating from Moody’s and S&P having a term of not more than 90 days and covering
securities described in clause (a) above; (c) investments in money market funds substantially all
the assets of which are comprised of securities of the types described in clause (a) above or in
other securities having an investment grade rating from Moody’s and S&P; (d) investments in money
market funds access to which is provided as part of “sweep” accounts maintained with a financial
institution that has an investment grade rating from Moody’s and S&P, or the foreign equivalent
thereof; (e) investments in tax exempt bonds and notes that (i) “re-set” interest rates not less
frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an
established broker dealer, and (iii) whose principal and accrued interest are guaranteed or payment
of which is assured by an organization that has an investment grade rating from Moody’s and S&P, or
the foreign equivalent thereof; and (f) investments in pooled funds or investment accounts
consisting of investments of the nature described in the foregoing clause (e).



     “Change of Control” shall mean and include any of the following:




     (i) during any period of twelve (12) consecutive calendar months, individuals who at
the beginning of such period constituted any Holdings’ Board of Directors (together with any
new directors (x) whose election by Holdings’ Board of Directors was, or (y) whose
nomination for election by Holdings’ shareholders was (prior to the date of the proxy or
consent solicitation relating to such nomination), approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so approved), shall cease
for any reason to constitute a majority of the directors then in office;




     (ii) any person or group (as such term is defined in section 13(d)(3) of the 1934 Act)
shall acquire, directly or indirectly, beneficial ownership (within the meaning of Rule
13d-3 and 13d-5 of the 1934 Act) of more than 50%, on a fully diluted basis, of the economic
or voting interest in Holdings’ capital stock;




     (iii) the shareholders of Holdings approve a merger or consolidation of such with any
other person, other than a merger or consolidation which would result in the voting
securities of Holdings outstanding immediately prior thereto continuing to



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represent (either by remaining outstanding or by being converted or exchanged for
voting securities of the surviving or resulting entity) more than 50% of the combined voting
power of the voting securities of Holdings or such surviving or resulting entity outstanding
after such merger or consolidation;




     (iv) the shareholders of Holdings approve a plan of complete liquidation of Holdings or
an agreement or agreements for the sale or disposition by Holdings of all or substantially
all of Holdings’ assets; and/or




     (v) Holdings ceases to own one hundred percent (100%) of the issued and outstanding
capital stock of a Borrower, except as a result of a transaction expressly permitted in
Section 9.3, below.



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



     “Commitment” shall mean, with respect to each Lender, the obligation hereunder of such
Lender to make Loans and to participate in the risks of all Letters of Credit issued by the Letter
of Credit Issuer at Holdings’ request on behalf of the Borrowers, up to the amount set forth
opposite such Lender’s name under the column headed “Commitments” as set forth in Annex A hereof
during the Commitment Period as such Commitment may be reduced in accordance with a reduction in
the Total Commitment Amount pursuant to Section 3.2 hereof or increased pursuant to Section 3.12
hereof.



     “Commitment Period” shall mean the period from (i) the Restatement Date
to (ii) the third (3rd) Anniversary Date, or such earlier date on which the
Commitments are terminated pursuant to the terms hereof.



     “Consolidated” shall mean Holdings and its Subsidiaries, taken as a whole in
accordance with GAAP.



     “Consolidated Fixed Charges” shall mean, with respect to any period, the sum of (a)
Consolidated Interest Expense for such period and (b) Consolidated Lease Rentals for such period.



     “Consolidated Income Available for Fixed Charges” shall mean, with respect to any
period, Consolidated Net Income for such period, plus all amounts deducted in the
computation thereof on account of (a) Consolidated Fixed Charges and (b) taxes imposed on or
measured by income or excess profits.



     “Consolidated Interest Expense” shall mean, for any period, Interest Expense of
Holdings and its Subsidiaries on a Consolidated basis.



     “Consolidated Lease Rentals” shall mean, with respect to any period, the sum of the
rental and other obligations required to be paid during such period by Holdings and its
Subsidiaries as lessee under all leases of real or personal property (other than Capitalized



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Leases), on a Consolidated basis, excluding any amount required to be paid by the lessee
(whether or not therein designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges, provided that, if
at the date of determination, any such rental or other obligations (or portion thereof) are
contingent or not otherwise definitely determinable by the terms of the related lease, the amount
of such obligations (or such portion thereof) (i) shall be assumed to be equal to the amount of
such obligations for the period of 12 consecutive calendar months immediately preceding the date of
determination or (ii) if the related lease was not in effect during such preceding 12-month period,
shall be the amount estimated by a responsible officer of Holdings on a reasonable basis and in
good faith.




     “Consolidated Net Income” shall mean, with reference to any period, the net income (or
loss) of Holdings and its Subsidiaries for such period, on a Consolidated basis, as determined in
accordance with GAAP, after eliminating all offsetting debits and credits between Holdings and its
Subsidiaries and all other items required to be eliminated in the course of the preparation of
consolidated financial statements of Holdings and its Subsidiaries in accordance with GAAP,
provided that there shall be excluded:




     (a) the income (or loss) of any Person (other than a Subsidiary) in which Holdings or
any Subsidiary has an ownership interest, except to the extent that any such income has been
actually received by Holdings or such Subsidiary in the form of cash dividends or similar
cash distributions,




     (b) the undistributed earnings of any Subsidiary to the extent that, to the best of the
knowledge of the Holdings, the declaration or payment of dividends or similar distributions
by such Subsidiary is (i) not at the time permitted by the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary, or (ii) otherwise unavailable for payment,




     (c) any aggregate net gain (but not any aggregate net loss) during such period arising
from the sale, conversion, exchange or other disposition of Investments or capital assets
(such term to include, without limitation, the following, whether or not current: all fixed
assets, whether tangible or intangible, and all inventory sold in conjunction with the
disposition of fixed assets), and any taxes on such net gain (or net loss),




     (d) any non-cash gains or losses resulting from any write-up or reappraisal of any
assets, including, without limitation, goodwill of such Person as well as goodwill
impairments and losses traced to the write-off of goodwill associated with the sale or other
disposition of a business by such Person,




     (e) any net gain from the collection of the proceeds of life insurance policies,




     (f) any gain arising from the acquisition of any security (as defined in the Securities
Act of 1933), or the extinguishment, under GAAP, of any Indebtedness, of Holdings or any
Subsidiary,



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     (g) any deferred or other credit representing the excess of equity in any Subsidiary at
the date of acquisition over the cost of the investment in such Subsidiary, and




     (h) any non-cash charges related to the implementation by Holdings and its Subsidiaries
of FASB Statement 142.




     “Consolidated Net Worth” shall mean, at any time,




     (a) the sum (adjusted for any non-cash charges related to the implementation by
Holdings and its Subsidiaries of FASB Statement 142) of (i) the par value (or value stated
on the books of the corporation) of the capital stock (but excluding treasury stock and
capital stock subscribed and unissued) of Holdings and its Subsidiaries, plus (ii)
the amount of the paid-in capital and retained earnings of Holdings and its Subsidiaries, in
each case as such amounts would be shown on a Consolidated balance sheet of Holdings and its
Subsidiaries as of such time prepared in accordance with GAAP, minus




     (b) to the extent included in clause (a), all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.




     “Controlled Group” shall mean a controlled group of corporations, as defined in
Section 1563 of the Code, of which any Borrower is a part.


     “Credit Event” shall mean (a) the obligation of (i) each Lender to make a Loan on the
occasion of each Revolving Credit Borrowing, (ii) the Letter of Credit Issuer to issue any Letter
of Credit, or (iii) any Lender to participate in the risk of any Letter of Credit, (b) the making
of a Loan by any Lender, (c) the delivery by Holdings on behalf of the Borrowers of (i) a Notice of
Borrowing requesting a Revolving Credit Borrowing or a Letter of Credit or (ii) a Rate
Conversion/Continuation Request requesting the conversion or continuation of Revolving Credit
Loans, (d) a Rate Conversion or Rate Continuation, or (e) the acceptance by any Borrower of
proceeds of any Revolving Credit Borrowing.


     “Default under ERISA” shall mean (a) the occurrence or existence of a material
“accumulated funding deficiency” (as defined in ERISA) in respect of any Plan within the scope of
Section 302(a) of ERISA or (b) any failure by any Borrower to make a full and timely payment of
premiums required by Section 4001 of ERISA in respect of any Plan, or (c) the occurrence or
existence of any material liability under Section 4062, 4063, 4064, 4069, 4201, 4217 or 4243 of
ERISA in respect of any Plan, or (d) the occurrence or existence of any material breach of any
other Law or regulation in respect of any such Plan, or (e) the institution or existence of any
action for the forcible termination of any such Plan which is within the scope of Section
4001(a)(3) or (15) or ERISA.


     “Defaulting Lender” means any Lender (a) that has failed to fund any portion of the
Revolving Loans or Risk Participation Exposure required of it hereunder, (b) that has otherwise
failed to pay over to the Agent or any other Lender any other amount required to be paid by it
hereunder within one Banking Day of the date when due, unless the
subject of a good faith


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dispute, (c) that has given verbal or written notice to a Borrower, the Agent or any Lender or
has otherwise publicly announced that such Lender believes it will fail to fund any payments
required to be made by it or fund any purchases of participations required to be funded by it under
this Agreement and the other Loan Documents, (d) as to which the Agent has a good faith belief that
such Lender has defaulted in fulfilling its obligations (as a lender, agent or letter of credit
issuer) under one or more other syndicated credit facilities or (e) with respect to which one or
more Lender-Related Distress Events has occurred with respect to such Person or any Person that
directly or indirectly controls such Lender and the Agent has reasonably determined that such
Lender may become a Defaulting Lender. For purposes of this definition, control of a Person shall
have the same meaning as in the second sentence of the definition of Affiliate.




     “Distribution” shall mean any payment made, liability incurred and other consideration
(other than any stock dividend, or stock split or similar distributions payable only in capital
stock of a Borrower) given (i) for the purchase, acquisition, redemption or retirement of any
capital stock of a Borrower or (ii) as a dividend, return of capital or other distribution of any
kind in respect of a Borrower’s capital stock outstanding at any time.



     “Domestic Subsidiary” means any Subsidiary which is incorporated or organized in the
United States or any state or territory thereof.



     “EBITDA” shall mean, for any period, the sum of the amounts of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense for such period, (iii) depreciation for such period on a
Consolidated basis, as determined in accordance with GAAP, (iv) amortization for such period on a
Consolidated basis, as determined in accordance with GAAP, and (v) all provisions for any taxes
imposed on or measured by income or excess profits made by Holdings and its Subsidiaries during
such period, in each case, for clauses (ii) through (v), inclusive, to the extent expensed or
deducted in computing Consolidated Net Income.



     “Environmental Laws” shall mean any federal, state or local Law, regulation,
ordinance, or order pertaining to the protection of the environment and the health and safety of
the public, including (but not limited to) the Comprehensive Environmental Response, Compensation
and Liability Act (“CERCLA”), 42 USC §§ 9601 et seq.; the Resource Conservation and
Recovery Act (“RCRA”), 42 USC §§ 6901 et seq., the Hazardous Materials
Transportation Act, 49 USC §§ 1801 et seq., the Federal Water Pollution Control Act
(33 USC §§ 1251 et seq.), the Toxic Substances Control Act (15 USC §§ 2601
et seq.) and the Occupational Safety and Health Act (29 USC §§ 651 et
seq.), and all similar state, regional or local Laws, treaties, regulations, statutes or
ordinances, common Law, civil Laws, or any case precedents, rulings, requirements, directives or
requests having the force of Law of any foreign or domestic governmental authority, agency or
tribunal, and all foreign equivalents thereof, as the same have been or hereafter may be amended,
and any and all analogous future Laws, treaties, regulations, statutes or ordinances, common Law,
civil Laws, or any case precedents, rulings, requirements, directives or requests having the force
of Law of any foreign or domestic governmental authority, agency or tribunal and the regulations
promulgated pursuant thereto, which governs: (i) the existence, cleanup and/or remedy of
contamination on property; (ii) the emission or discharge of Hazardous Materials into the
environment; (iii) the control of hazardous wastes; (iv)



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the use, generation, transport, treatment, storage, disposal, removal or recovery of Hazardous
Materials; or (v) the maintenance and development of wetlands.




     “ERISA” shall mean the Employee Retirement Income Security Act of 1974 (Public Law
93406), as amended, and in the event of any amendment affecting any section thereof referred to in
this Agreement, that reference shall be reference to that section as amended, supplemented,
replaced or otherwise modified.



     “ERISA Affiliate” of any Person shall mean any other Person that for purposes of Title
IV of ERISA is a member of such Person’s Controlled Group, or under common control with such
Person, within the meaning of Section 414 of the Code.



     “ERISA Regulator” shall mean any governmental agency (such as the Department of Labor,
the Internal Revenue Service and the Pension Benefit Guaranty Corporation) having any regulatory
authority over any Plan.



     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to time.



     “Event of Default” has the meaning assigned to such term in Article 11.



     “Exemption Certificate” has the meaning assigned to such term in Section 3.9(f).



     “Existing Credit Agreement” shall mean the Credit Agreement dated December 14, 2004,
as amended, among Holdings, Lincoln, International, Global and Harris Calorific, Inc., a Delaware
corporation, as borrowers, KeyBank, as agent, and various lenders party thereto.



     “Facility Fee” has the meaning assigned to such term in Section 3.4(a).



     “Fed Funds Rate” shall mean, for any period, a fluctuating interest rate per annum
equal for each day during such period to 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 Banking Day, for the next preceding Banking Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Banking Day, the average of the quotations for such day on such transactions received by the
Agent from three (3) federal funds brokers of recognized standing selected by it.



     “Fee Adjustment Date” shall mean each April 1, June 1, September 1 and December 1
during the Commitment Period, commencing with December 1, 2009.



     “Fee Determination Date” shall mean, as to each Fee Adjustment Date, the last day of
the Fiscal Quarter most recently ended prior to such Fee Adjustment Date; provided that, as to the
Fee Adjustment Date that is April 1 of any year, the Fee Determination Date shall be December 31 of
the immediately preceding year (that is, the last day of the Fiscal Year most recently ended prior
to such April 1 Fee Adjustment Date). By way of example, the Fee Determination Date for



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the Fee Adjustment Date on June 1, 2010 shall be March 31, 2010, which is the last day of the
Fiscal Quarter most recently ended prior to such Fee Adjustment Date.




     “Fee Letter” shall mean that certain fee letter between the Agent and Holdings dated
September 30, 2009.



     “Fiscal Quarter” shall mean any of the four consecutive three-month fiscal accounting
periods collectively forming a Fiscal Year of Holdings consistent with Holdings’ past practice.



     “Fiscal Year” shall mean Holdings’ regular annual accounting period which shall end
December 31, 2009, in respect of Holdings’ current annual accounting period, and which thereafter
shall end on December 31 of each succeeding calendar year.



     “Fixed Charges Coverage Ratio” shall mean, at any time, the ratio of (a) Consolidated
Income Available for Fixed Charges for the period of four consecutive fiscal quarters ending as of
the most recent fiscal quarter ended prior to such time to (b) Consolidated Fixed Charges for such
period.



     “Former Agent” has the meaning assigned to such term in Section 13.13.



     “Former LC Bank” has the meaning assigned to such term in Section 5.3.



     “Funded Debt” shall mean (a) Indebtedness, other than Indebtedness of the types
described in clauses (ix), (x), (xii) and (xiii) of the definition of such term, below, and (b) all
guaranty obligations of such Person in respect of any Indebtedness of the type described in clause
(a) of this definition.



     “GAAP” shall mean generally accepted accounting principles in the United States of
America as in effect from time to time; it being understood and agreed that determinations in
accordance with GAAP for purposes of Sections 8.16 through 8.20, inclusive, including defined terms
as used therein, are subject (to the extent provided therein) to Sections 1.1 and 1.3.



     “Guarantor” shall mean one who pledges his, her or its credit or property in any
manner for the payment or other performance of the Indebtedness, contract or other obligation of
another and includes (without limitation) any guarantor (whether of collection or payment), any
obligor in respect of a standby letter of credit or surety bond issued for the obligor’s account,
and surety, any co-maker, any endorser, and anyone who agrees conditionally or otherwise to make
any loan, purchase or investment in order thereby to enable another to prevent or correct a default
of any kind.



     “Guaranty” shall mean the obligation of a Guarantor.



     “Hazardous Material” shall mean and include (i) any asbestos or other material
composed of or containing asbestos which is, or may become, even if properly managed, friable, (ii)
petroleum and any petroleum product, including crude oil or any fraction thereof, and natural gas
or synthetic natural gas liquids or mixtures thereof, (iii) any hazardous, toxic or dangerous
waste,



12









 




substance or material defined as such in (or for purposes of) CERCLA or RCRA, any so-called
“Superfund” or “Superlien” law, or any other applicable Environmental Laws, and (iv) any other
substance whose generation, handling, transportation, treatment or disposal is regulated pursuant
to any Environmental Laws.




     “Impacted Lender” shall mean any Lender that fails to promptly provide the Agent, upon
the Agent’s request, satisfactory assurance that such Lender will not become a Defaulting Lender.



     “Incipient Default” shall mean an event, condition or thing which constitutes, or
which with the lapse of any applicable grace period or the giving of notice or both would
constitute, any Event of Default and which has not been appropriately waived by the Lenders in
writing or fully corrected prior to becoming an actual Event of Default.



     “Increased Rate” shall mean, at any time and from time to time, a rate of interest per
annum which (i) as to any Loan, is Two Hundred (200) Basis Points in excess of the rate of interest
otherwise accruing on such Loan at such time, and (ii) as to all other Obligations other than
Loans, Four Hundred (400) Basis Points in excess of the Prime Rate.



     “Indebtedness” means, with respect to any Person, without duplication, (i) all
indebtedness for money borrowed of such Person; (ii) all bonds, notes, debentures and similar debt
securities of such Person; (iii) the deferred purchase price of capital assets or services which in
accordance with GAAP would be shown on the liability side of the balance sheet of such Person; (iv)
the face amount of all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder; (v) all obligations, contingent or otherwise, of such
Person in respect of bankers’ acceptances; (vi) all Indebtedness of a second Person secured by any
Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed;
(vii) all Capitalized Lease obligations of such Person and all Indebtedness of such Person secured
by purchase money Liens; (viii) the present value, determined on the basis of the implicit interest
rate, of all basic rental obligations under all “synthetic” leases (i.e. leases accounted for by
the lessee as operating leases under which the lessee is the “owner” of the leased property for
Federal income tax purposes); (ix) all obligations of such Person to pay a specified purchase price
for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar
obligations; (x) all net obligations of such Person under any so-called ‘hedge’, ‘swap’, ‘collar’,
‘cap’ or similar interest rate or currency fluctuation protection agreements; (xi) 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), including,
without limitation, in connection with a Qualifying Securitization Transaction, other than in any
such case any thereof sold solely for purposes of collection of delinquent accounts; (xii) the
stated value, or liquidation value if higher, of all redeemable stock (or other equity interest) of
such Person; and (xiii) all guaranty obligations of such Person; provided that (a) neither trade
payables nor other similar accrued expenses, in each case arising in the ordinary course of
business, unless evidenced by a note, shall constitute Indebtedness; and (b) the Indebtedness of
any Person shall in any event include (without duplication) the Indebtedness of any other entity
(including any general partnership in which such Person is a general partner) to the extent such
Person is liable thereon as a result of such Person’s ownership interest in or other



13









 




relationship with such entity, except to the extent the terms of such Indebtedness provide
expressly that such Person is not liable thereon.




     “Interest Adjustment Date” shall mean each April 1, June 1, September 1 and December 1
during the Commitment Period, commencing with December 1, 2009.



     “Interest Determination Date” shall mean, as to each Interest Adjustment Date, the
last day of the Fiscal Quarter most recently ended prior to such Interest Adjustment Date; provided
that, as to the Interest Adjustment Date that is April 1 of any year, the Interest Determination
Date shall be December 31 of the immediately preceding year (that is, the last day of the Fiscal
Year most recently ended prior to such April 1 Interest Adjustment Date). By way of example, the
Interest Determination Date for the Interest Adjustment Date on June 1, 2010 shall be March 31,
2010, which is the last day of the Fiscal Quarter most recently ended prior to such Interest
Adjustment Date.



     “Interest Expense” shall mean, for any fiscal period, all expense of Holdings or any
of its Subsidiaries for such fiscal period classified as interest expense for such period,
including capitalized interest and interest under “synthetic” leases, in accordance with GAAP.



     “Interest Period” shall mean, for each of the LIBOR Loans comprising a Revolving
Credit Borrowing, the period commencing on the date of such Loans or the date of the Rate
Conversion or Rate Continuation of any Loans into such LIBOR Loans and ending on the numerically
corresponding day of the period selected by Holdings on behalf of the Borrowers pursuant to the
provisions hereof and each subsequent period commencing on the last day of the immediately
preceding Interest Period in respect of such Loans and ending on the last day of the period
selected by Holdings on behalf of the Borrowers pursuant to the provisions hereof. The duration of
each such Interest Period shall be one (1), two (2), three (3) or six (6) months, in each case as
Holdings on behalf of the Borrowers may select, upon delivery to the Agent of a Notice of Borrowing
therefor in accordance with Section 3.l(d) hereof; provided, however, that:




	 	(i)	 	Interest Periods for Loans comprising part of the same Revolving Credit
Borrowing shall be of the same duration;
	 
	 	(ii)	 	no Interest Period may end on a date later than the last day of the Commitment
Period;
	 
	 	(iii)	 	if there is no such numerically corresponding day in the month that is such,
as the case may be, first, second, third or sixth month after the commencement of an
Interest Period, such Interest Period shall end on the last day of such month;
	 
	 	(iv)	 	whenever the last day of any Interest Period in respect of LIBOR Loans would
otherwise occur on a day other than a Banking Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Banking Day; provided, however, that
if such extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
immediately preceding Banking Day; and




14









 












	 	(v)	 	Holdings, on behalf of the Borrowers, may not select any Interest Period ending
after the date of any reduction in the Total Commitment Amount unless, after giving
effect to such selection, the aggregate unpaid principal amount of any then outstanding
Prime Rate Loans taken together with the principal amount of any then outstanding LIBOR
Loans having Interest Periods ending on or prior to the date of such reduction shall be
at least equal to the principal amount of the Revolving Credit Loans due and payable on
or prior to such date.





     “Investment” means any investment, made in cash, by undertaking or by delivery of
property, by Holdings or any of its Subsidiaries (i) in any Person, whether by acquisition of stock
or other equity interest, joint venture or partnership, Indebtedness or other obligation or
security, or by loan, Guaranty, advance, capital contribution or otherwise, or (ii) in any
property.



     “KeyBank” shall mean KeyBank National Association, a national banking association, its
successors and assigns.



     “LC Sublimit” shall mean the amount Fifteen Million Dollars ($15,000,000).



     “Law” shall mean any law, treaty, regulation, statute or ordinance, common law, civil
law, or any case precedent, ruling, requirement, directive or request having the force of law of
any foreign or domestic governmental authority, agency or tribunal.



     “Lender” or “Lenders” has the meaning assigned to such term in the preamble of
this Agreement.



     “Lender Debt” shall mean, collectively, every Indebtedness and liability now or
hereafter owing by any Borrower to the Lenders or any thereof, whether owing absolutely or
contingently, whether created by loan, overdraft, guaranty of payment or other contract or by
quasi-contract, tort, statute or other operation of Law, whether incurred directly to the Lenders
or any thereof or acquired by any or all thereof by purchase, pledge or otherwise, and whether
participated to or from the Lenders or any thereof in whole or in part.



     “Lender-Related Distress Event” shall mean, with respect to any Lender or any Person
that directly or indirectly controls such Lender (each a “Distressed Person”), (a) a voluntary or
involuntary case with respect to such Distressed Person under the Bankruptcy Code or any similar
bankruptcy or insolvency laws of its jurisdiction of formation, (b) a custodian, conservator,
receiver or similar official is appointed for such Distressed Person or any substantial part of
such Distressed Person’s assets, (c) such Distressed Person becomes or is insolvent or has a parent
that becomes or is insolvent, (d) such Distressed Person is subject to a forced liquidation,
merger, sale or other change of majority control (including, without limitation, the
nationalization or assumption of majority ownership or operating control) by the U.S. government or
other governmental authority or (e) such Distressed Person makes a general assignment for the
benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority
having regulatory authority over such Distressed Person or its assets to





15












 




be, insolvent or bankrupt. For purposes of this definition, control of a Person shall have
the same meaning as in the second sentence of the definition of “Affiliate”.




     “Lending Office” shall mean, with respect to any Lender, the office of such Lender
specified as its “Lending Office” on Schedule 1 hereto, or such other office of such Lender as such
Lender may from time to time specify in writing to the Borrowers and the Agent as the office at
which Loans are to be made and maintained.



     “Letter of Credit” shall mean (i) any “Letter of Credit” issued pursuant to the
provisions of the Existing Credit Agreement and outstanding on the Restatement Date and (ii) any
standby letter of credit issued by the Letter of Credit Issuer on a risk-participated basis with
the other Lenders pursuant to the provisions of this Agreement.



     “Letter of Credit Issuer” shall mean KeyBank and any successor thereto pursuant to
Section 5.3.



     “LIBOR” shall mean, with respect to any LIBOR Loan for any Interest Period, the per
annum rate of interest, determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive and binding absent manifest error) as of approximately 11:00 a.m.
(London time) two (2) Banking Days prior to the beginning of such Interest Period pertaining to
such LIBOR Loan, equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by
the Agent from time to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market), having a maturity comparable to such Interest
Period. In the event that such a rate quotation is not available for any reason, then the rate
shall be the rate, determined by the Agent as of approximately 11:00 a.m. (London time) two (2)
Banking Days prior to the beginning of such Interest Period pertaining to such LIBOR Loan, to be
the average (rounded upwards, if necessary, to the nearest one sixteenth of one percent (1/16th of
1%)) of the per annum rates of interest at which dollar deposits in immediately available funds
approximately equal in principal amount to such LIBOR Loan and for a maturity comparable to the
Interest Period, are offered to KeyBank National Association by prime banks in the London interbank
market.



     “LIBOR Loans” shall mean those Loans described in Section 3.1 hereof on which the
Borrowers shall pay interest at a rate based on LIBOR.



     “Lien” shall mean any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien or
retained security title of a conditional vendor and any easement, right of way or other encumbrance
on title to real property.



     “Lincoln Party” shall mean any of the Borrowers or any other direct or indirect
Subsidiary of any of them from time to time, collectively, the “Lincoln Parties”.



     “Loan” shall mean a Revolving Credit Loan made by a Lender to or for the account of
the Borrowers pursuant to Article 3 and refers to a Prime Rate Loan or a LIBOR Loan.



16









 





     “Loan Document” shall mean this Agreement, any assignment, note (including the Notes),
guaranty, subordination agreement (including, without limitation, subordination provisions
contained in documents evidencing or governing Subordinated Indebtedness), Reimbursement Agreement,
financial statement, certificate, audit report or other writing furnished by the Borrowers, or any
of their officers to the Lenders pursuant to or otherwise in connection with this Agreement.



     “Majority Lenders” shall mean, at any time of determination, one or more Lenders
having Commitments in the aggregate of at least fifty-one percent (51%) of the Total Commitment
Amount or, in the event that the Commitments of the Lenders shall have been terminated, the Lenders
holding fifty-one percent (51%) of the amount of the outstanding Revolving Credit Loans;
provided that the amount of Revolving Credit Loans and Commitments held, or deemed held, by
any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.



     “Material Adverse Effect” shall mean the occurrence or existence of (a) a material
adverse effect on the business, results of operations or financial condition of a Borrower and its
Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of a Borrower or a
Guarantor to perform its Obligations under this Agreement or any of the other Loan Documents, or
(c) a material adverse effect on the legality, validity or enforceability of a Borrower’s or a
Guarantor’s Obligations under this Agreement or any of the other Loan Documents.



     “Moody’s” shall mean Moody’s Investors Service, Inc. and its successors and assigns
or, if it shall be dissolved or shall no longer assign credit ratings to debt, then any other
nationally recognized statistical rating agency designated by the Agent and reasonably acceptable
to the Borrowers.



     “Multiemployer Plan” shall mean any Plan that is a “multiemployer plan” (as such term
is defined in section 4001(a)(3) of ERISA).



     “Multiple Employer Plan” means an employee benefit plan, other than a Multiemployer
Plan, to which a Borrower or any ERISA Affiliate, and one or more employers other than a Borrower
or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event
that any such plan has been terminated, to which a Borrower or an ERISA Affiliate made or accrued
an obligation to make contributions during any of the five plan years preceding the date of
termination of such plan.



     “Net Funded Debt” shall mean, as at the date of any determination, an amount equal to
(a) Total Funded Debt at such date, minus (b) on a Consolidated basis, cash and Cash
Equivalents of Holdings and its Domestic Subsidiaries at such date.



     “Net Leverage Ratio” shall mean, as of the end of any Fiscal Quarter, the ratio of (i)
Net Funded Debt outstanding as of the end of such Fiscal Quarter to (ii) Trailing EBITDA as of the
end of such Fiscal Quarter.



17









 





     “Note” or “Notes” shall mean a note or notes executed and delivered pursuant
to Section 3.1(c) hereof.



     “Notice of Borrowing” shall have the meaning assigned to such term in Section 3.1(d).



     “Obligations” shall mean, without duplication, all Indebtedness and other obligations
of the Borrowers and any Guarantor under this Agreement and the other Loan Documents, including,
without limitation, the outstanding principal and accrued interest in respect of any Revolving
Credit Loans, the outstanding principal and accrued interest in respect of Letters of Credit, all
Facility Fees, Risk Participation Fees, fees owing to the Lenders or the Agent, reimbursement
obligations under Letters of Credit, any indebtedness or obligations under any so-called ‘hedge’,
‘swap’, ‘collar’, ‘cap’ or similar interest rate or currency fluctuation protection agreements
hereafter constituting one or more of the Loan Documents pursuant to a writing signed by the
Borrowers, the Agent and the Majority Lenders, and any expenses, taxes, compensation or other
amounts owing under this Agreement, the Notes, any Reimbursement Agreement, including, without
limitation, pursuant to Sections 3.3, 3.4, 3.7, 3.8, 3.9 or 15.4 and any and all other amounts owed
by any Borrower or Guarantor to the Agent or the Lenders pursuant to this Agreement, the Notes or
any other Loan Document.



     “Other Taxes” has the meaning assigned to such term in Section 3.9.



     “Payment Office” shall mean such office of the Agent as set forth on Schedule 1 hereof
or such offices as may be from time to time selected by the Agent and notified in writing by the
Agent to the Borrowers and the Lenders as the office to which payments are to be made by the
Borrowers or the Lenders, as the case may be.



     “Permitted Acquisition” shall mean any Acquisition as to which all of the following
conditions are satisfied:




     (i) such Acquisition involves a line or lines of business in a Related Industry;




     (ii) such Acquisition is not actively opposed by the Board of Directors (or other
managing body, in the case of any entity other than a corporation) of the selling Person or
the Person whose equity interests are to be acquired;




     (iii) no Event of Default or Incipient Default then exists or would exist after giving
effect to such Acquisition; and




     (iv) at least ten (10) Banking Days prior to the completion of any such Acquisition
involving aggregate consideration, including the principal amount of any assumed
Indebtedness and (without duplication) any Indebtedness of any acquired Person or Persons,
in excess of $50,000,000, Holdings shall have delivered to the Agent and the Lenders a
certificate of a responsible financial or accounting officer of Holdings demonstrating, in
reasonable detail, the computation of and compliance with the ratios referred to in Sections
9.7 and 9.8 on a pro forma basis (which pro forma basis shall be satisfactory to the Agent)
after giving effect to such Acquisition;



18









 




provided, that the term Permitted Acquisition specifically excludes any loans, advances or
minority investments otherwise permitted pursuant to Section 9.2.




     “Permitted Holdings Merger” shall mean a merger between Holdings and another Person as
to which all of the following conditions are satisfied:




(i) Holdings is the surviving corporation under such merger;




(ii) no Event of Default or Incipient Default then exists or would exist after giving effect
to such merger;




(iii) without limiting the generality of clause (ii), above, no Change of Control would
occur by reason of such merger; and




(iv) at least 20 Banking Days prior to the completion of any such merger, Holdings shall
have delivered to the Agent and the Lenders (A) audited financial statements for the other
merger party (unless audited financial statements are unavailable, in which case, unaudited
financial statements shall be delivered) for the three most recent fiscal years of such
Person and (B) a certificate of a responsible officer of Holdings demonstrating, in
reasonable detail, the computation of and compliance with the ratios referred to in Sections
9.7 and 9.8 hereof on a pro forma basis (which pro forma basis shall be satisfactory to the
Agent) after giving effect to such merger.



     “Permitted Purchase Money Security Interest” shall mean any Lien which is created or
assumed in purchasing, constructing or improving any real or personal property (other than
inventory) in the ordinary course of business, or to which any such property is subject when so
purchased, including, without limitation, Capitalized Leases, provided, that (i) such lien shall be
confined to the aforesaid property, (ii) the Indebtedness secured thereby does not exceed the total
cost of the purchase, construction or improvement, (iii) any refinancing of such indebtedness does
not increase the amount of indebtedness owing as of the date of such refinancing.



     “Person” shall mean an individual, partnership, limited liability company, corporation
(including a business trust), joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency thereof.



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



     “Prepayment LIBOR” has the meaning assigned to such term in Section 3.3(d).



     “Prime Rate” shall mean the highest of (i) the per annum rate equal to the Fed Funds
Rate plus one-half percent (0.50%), (ii) that interest rate established from time to time
by KeyBank as



19









 




its so-called “prime” rate (or equivalent rate otherwise named), whether or not such rate is
publicly announced; the Prime Rate may not necessarily be the lowest interest rate charged by
KeyBank for commercial or other extensions of credit or (iii) the Adjusted LIBOR for an Interest
Period of one month beginning on such day (or if such day is not a Banking Day, the most recent
Banking Day), plus one percent (1.00%). Any change in the Prime Rate due to a change in the
“prime” rate described in clause (ii) above or the Fed Funds Rate will be effective from and
including the effective date of such change in the “prime” rate or the Fed Funds Rate,
respectively.




     “Prime Rate Loans” shall mean those loans described in Section 3.1(b) hereof on which
the Borrowers shall pay interest at the rate based on the Prime Rate.



     “Purchase Date” shall have the meaning assigned to such term in Section 3.1(i).



     “Qualifying Securitization Transaction” shall mean a bona fide securitization
transaction effected under terms and conditions customary in the capital markets and consisting of
sales of Trade Receivables by a Lincoln Party to a Special Purpose Company which in turn either
sells or pledges such Trade Receivables (or undivided interests therein) to a commercial paper
conduit or other financing source (whether with or without recourse to the Special Purpose
Company), and as to which each of the following conditions shall be satisfied: (i) such sales to
the Special Purpose Company are not accounted for under GAAP as secured loans, (ii) such
transactions are, in the good faith opinion of a responsible officer of Holdings, for fair value
and in the best interests of such Lincoln Party, and (iii) recourse to any Lincoln Party in
connection with any such sale of Trade Receivables is limited to repurchase, substitution or
indemnification obligations customarily provided for in asset securitization transactions and
arising from breaches of representations or warranties made by any Lincoln Party in connection with
such sale.



     “Quarterly Payment Date” shall mean each March 31, June 30, September 30 and December
31 during the Commitment Period, commencing with December 31, 2009.



     “Quoted Rate” shall have the meaning assigned to such term in Section 3.1(i).



     “Ratable Portion” or “Ratable Share” shall mean, in respect of any Lender,
the quotient (expressed as a percentage) obtained at any time by dividing such Lender’s Commitment
at such time by the Total Commitment Amount.



     “Rate Continuation” shall mean a continuation of LIBOR Loans having a particular
Interest Period as LIBOR Loans having an Interest Period of the same duration pursuant to Section
3.1(h).



     “Rate Conversion” refers to a conversion pursuant to Section 3.1(h) of Loans of one
Type into Loans of another Type and, with respect to LIBOR Loans, from one permissible Interest
Period to another permissible Interest Period.



20









 





     “Rate Conversion/Continuation Request” shall have the meaning assigned to such term in
Section 3.l(h).



     “Reduction Notice” shall mean a notice for a request for the reduction in the Total
Commitment Amount pursuant to Section 3.2 in the form of Exhibit D hereto.



     “Regulatory Change” shall mean, as to any Lender, any change in United States federal,
state or foreign Laws or regulations or the adoption or making of any interpretations, directives
or requests of or under any United States federal, state or foreign Laws or regulations (whether or
not having the force of Law) by any court or governmental authority charged with the interpretation
or administration thereof.



     “Reimbursement Agreement” shall mean any reimbursement agreement in respect of any
Letter of Credit.



     “Related Industries” means the welding, joining and cutting industry, including the
manufacture and sale of welding and cutting equipment and related consumables, other metal joining
equipment and consumables, industrial gases and gas apparatus, laser and robotics for welding
applications, services for industrial fabrication in general and the engineered adhesives and
industrial fastener industries.



     “Reportable Event” shall mean a reportable event as that term is defined in Title IV
of the Employee Retirement Income Security Act of 1974, as amended, except actions of general
applicability by the Secretary of Labor under Section 110 of such Act.



     “Reserve Percentage” shall mean for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement (including, without
limitation, all basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for a member bank of
the Federal Reserve System in Cleveland, Ohio, in respect of “Eurocurrency Liabilities”.



     “Restatement Date” shall mean November 18, 2009 or such other date which is acceptable
to the Agent and the Lenders.



     “Revolving Credit Borrowing” shall mean a group of Revolving Credit Loans of a single
Type, made by the Lenders on a single date and as to which, as to LIBOR Loans, a single Interest
Period is in effect (i.e. any group of Revolving Credit Loans made by the Lenders having a
different Type, or, as to LIBOR Loans, having a different Interest Period, regardless of whether
such Interest Period commences on the same date as another Interest Period, or made on a different
date shall be considered to comprise a different Revolving Credit Borrowing).



     “Revolving Credit Facility” shall mean the revolving credit established by the Lenders
in favor of the Borrowers hereby in the maximum principal amount of the Total Commitment Amount.



21









 





     “Revolving Credit Loan” shall mean a Loan by a Lender to the Borrowers pursuant to
Section 3.1(a), and refers to a Prime Rate Loan or a LIBOR Loan.



     “Revolving Credit Note” shall mean a note executed and delivered pursuant to Section
3.l(c) hereof.



     “Risk Participation Exposure” shall mean, with respect to any Lender, at any time of
determination, such Lender’s Ratable Portion of the sum of (a) the aggregate entire Stated Amount
of all such Letters of Credit outstanding at such time, and (b) the aggregate amount that has been
drawn under such Letters of Credit but for which the Letter of Credit Issuer or the Lenders, as the
case may be, have not at such time been reimbursed by the Borrowers.



     “Risk Participation Fee” shall mean the fee payable to the Lenders pursuant to Section
3.4(c).



     “S&P” shall mean Standard & Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc., and its successors and assigns or, if it shall be dissolved or shall no longer
assign credit ratings to long term debt, then any other nationally recognized statistical rating
agency designated by the Agent and reasonably acceptable to the Borrowers.



     “SEC” shall mean the Securities and Exchange Commission.



     “Significant Subsidiary” shall mean any Domestic Subsidiary that is a “significant
subsidiary” as defined in Regulation S-X, Rule 1-02(w) of the SEC, as such Regulation and Rule are
in effect on the date hereof.



     “Special Purpose Company” shall mean any Person created in connection with a
Qualifying Securitization Transaction, provided, that any Special Purpose Company shall not
own any property or conduct any activities other than those properties and activities which are
reasonably required to be owned and conducted in connection with the involvement of such Person in
Qualifying Securitization Transactions.



     “Stated Amount” of each Letter of Credit shall mean the maximum available to be drawn
thereunder (regardless of whether any conditions or other requirements for drawing could then be
met).



     “Subordinated Indebtedness” shall mean any Indebtedness which has been subordinated to
the Obligations in right and time of payment upon terms which are satisfactory to the Majority
Lenders, which terms may, in the Majority Lenders’ determination, include (without limitation)
limitations or restrictions on the right of the holder of such Indebtedness to receive payments and
exercise remedies.



     “Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason of the



22









 




happening of any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries and (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person directly or indirectly through Subsidiaries, has more
than a 50% equity interest at the time. Unless otherwise expressly provided in this Agreement, all
references herein to “Subsidiary” shall mean a Subsidiary (direct or indirect) of Holdings.




     “Taxes” has the meaning assigned to such term in Section 3.9(a).



     “Total Commitment Amount” shall mean the amount One Hundred Fifty Million Dollars
($150,000,000), as such amount may be increased or reduced pursuant to the provisions of this
Agreement.



     “Total Funded Debt” shall mean, as at the date of any determination, and on a
Consolidated basis, the principal amount of any and all outstanding Funded Debt of Holdings and its
Subsidiaries at such date, including, without limitation, the outstanding Obligations of the
Borrowers to the Lenders under this Agreement at such date and any other Lender Debt at such date.



     “Total Leverage Ratio” shall mean, as of the end of any Fiscal Quarter, the ratio of
(i) Total Funded Debt outstanding on such Fiscal Quarter end to (ii) Trailing EBITDA as of such
Fiscal Quarter end.



     “Trade Receivables” shall mean indebtedness and other obligations owed to Holdings or
any other Lincoln Party, whether constituting accounts, chattel paper, instruments or general
intangibles, arising in connection with the sale of goods and services by Holdings or such Lincoln
Party to commercial customers, including, without limitation, the obligation to pay any finance
charges with respect thereto, and agreements relating thereto, collateral securing the foregoing,
books and records relating thereto and all proceeds thereof.



     “Trailing EBITDA” shall mean, as of the end of any Fiscal Quarter, EBITDA for such
Fiscal Quarter, plus EBITDA for the three (3) immediately preceding Fiscal Quarters



     “Type” shall mean, when used in respect of any Revolving Credit Loan, LIBOR or Prime
Rate as applicable to such Loan.



     “USA Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as
the same has been, or shall hereafter be, renewed, extended, amended or replaced.



     The foregoing definitions shall be applicable to the singular and plurals of the foregoing
defined terms.



     SECTION 1.2 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specific date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each means “to but excluding”.



23









 





     SECTION 1.3 Accounting Terms. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with GAAP; provided,
however, that, for purposes of determining satisfaction of the financial tests set forth in the
definitions of Applicable LIBOR Percentage, and Applicable Prime Rate Percentage, and Applicable
Fee Percentage, and compliance with the covenants set forth in Article 9, all terms of an
accounting or financial nature shall be construed in accordance with generally accepted accounting
principles as in effect on the date of this Agreement and in all cases shall be applied on a basis
consistent with those applied in the preparation of the audited financial statements referred to in
Section 10.5.



     SECTION 1.4 Restatement of Existing Credit Agreement. This Agreement amends and
restates the Existing Credit Agreement in its entirety; provided that Vernon joins in this
Agreement as an additional Borrower. As such, this Agreement represents in part a renewal of, and
is issued in substitution and exchange for, and not in satisfaction or novation of, the
“Obligations” under the Existing Credit Agreement, if any. To the extent outstanding, any
“Obligations” under the Existing Credit Agreement are continuing Obligations of the Borrowers upon
and subject to the terms and conditions of this Agreement, and the restatement effected hereby
shall not be construed to be a payment or satisfaction thereof. To the extent payment in full of
and the satisfaction of all Obligations under this Agreement shall occur, such payment shall also
be deemed to be payment in full and satisfaction of the “Obligations” under the Existing Credit
Agreement. Notwithstanding the foregoing, the parties hereto acknowledge and agree that the
revolving credit commitment of PNC Bank, National Association under the Existing Credit Agreement,
which, by reason of its being the successor by merger to National City Bank, a national banking
association, is $50,000,000 (the “Existing PNC Commitment”), shall, for the purposes of this
Agreement, be reduced to $25,000,000 on and after the Restatement Date; and to the extent, if any,
that any Revolving Credit Loans shall have been advanced and not repaid on or prior to the
Restatement Date, notwithstanding the ratable sharing provisions of Section 4.1 hereof, the
Borrowers shall repay one-half of such Revolving Credit Loans owing to PNC Bank, National
Association (together with all other Obligations owing to PNC Bank, National Association solely in
respect of the portion of the Existing PNC Commitment being terminated).



     All references to the “Credit Agreement” or words of like import in any document, instrument
or agreement executed and delivered in connection with the Existing Credit Agreement (to the extent
not amended or restated in connection with this Agreement or expressly superseded by any agreement,
instrument or other document executed in connection with this Agreement), shall be deemed to refer,
without further amendment, to this Agreement as this Agreement may be further amended, modified or
extended. Each of the Borrowers hereby reaffirms each of the Loan Documents executed and delivered
by or on its behalf in connection with the Existing Credit Agreement.



24









 





ARTICLE 2

AMOUNT AND NATURE OF CREDIT




     SECTION 2.1 Amount and Nature of Credit. Subject to the terms and conditions set
forth in this Agreement, each of the Lenders hereby establishes a facility pursuant to which
Revolving Credit Loans shall be available to the Borrowers on a revolving credit basis in an
amount, in the aggregate as to all of the Lenders, not to exceed the Total Commitment Amount, of
which an amount not to exceed the LC Sublimit shall be available for the issuance of Letters of
Credit.



     SECTION 2.2 Purpose of Facility. The Borrowers shall use the proceeds of Revolving
Credit Loans hereunder (a) for the general corporate working capital purposes of Holdings and its
Subsidiaries and (b) for other general corporate purposes, including, without limitation, but
subject to the terms and conditions hereinafter set forth, the acquisition of other businesses.
The Borrowers shall use the Letters of Credit for the purposes set forth in Article 5 and for
general corporate purposes of the Lincoln Parties.



ARTICLE 3

LOANS




     SECTION 3.1 Revolving Credit Loans.



     (a) Revolving Credit Loans. Subject to the terms and provisions of this Agreement,
each Lender severally agrees to make Revolving Credit Loans to the Borrowers in respect of the
Revolving Credit Facility from time to time during the Commitment Period up to such Lender’s
respective Commitment; provided, however, that in no event at any time shall the aggregate
principal amount of all Revolving Credit Loans then outstanding, plus the aggregate Risk
Participation Exposure then existing, be in excess of the Total Commitment Amount. Within the
limits set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Credit Loans.



     (b) Revolving Credit Borrowings.



     (i) Subject to the terms and conditions set forth in this Agreement, the Borrowers shall have
the option to request Revolving Credit Borrowings in respect of the Revolving Credit Facility,
comprised of (A) Prime Rate Loans maturing on or before the last day of the Commitment Period, in
aggregate amounts of not less than Five Hundred Thousand Dollars ($500,000) or additional
increments of One Hundred Thousand Dollars ($100,000) or any integral multiple thereof or (B) LIBOR
Loans maturing on the last day of the Interest Period applicable thereto in aggregate amounts of
not less than Three Million Dollars ($3,000,000), or additional increments of One Million Dollars
($1,000,000) or any integral multiple thereof.



     (ii) The Borrowers may request more than one Revolving Credit Borrowing on any Banking Day;
provided, however, that if on the same Banking Day the Borrowers request two or more Revolving
Credit Borrowings which are comprised of LIBOR Loans, each such Revolving Credit Borrowing of LIBOR
Loans shall have an Interest Period which is different in duration



25









 




from the Interest Periods in respect of the other such Revolving Credit Borrowings of LIBOR
Loans.




     (iii) The Borrowers shall not request a Revolving Credit Borrowing consisting of LIBOR Loans
if, after giving effect to such request, there would be outstanding more than ten (10) Revolving
Credit Borrowings consisting of LIBOR Loans.



     (c) Notes.



     (i) The obligation of the Borrowers to repay Revolving Credit Loans made by each Lender in
respect of the Revolving Credit Facility and to pay interest thereon shall be evidenced by a
Revolving Credit Note of the Borrowers substantially in the form of Exhibit A hereto, with
appropriate insertions, dated the date of this Agreement and payable to the order of such Lender on
the last day of the Commitment Period, in the principal amount of its Commitment.



     (ii) The principal amount of the Revolving Credit Loans made by each Lender, and all
prepayments thereof and the applicable dates with respect thereto shall be recorded by such Lender
from time to time on any ledger or other record of such Lender or such Lender shall record such
information by such other method as such Lender may generally employ; provided, however, that
failure to make any such record shall in no way detract from each Borrower’s obligations under any
Note. The aggregate unpaid amount of the Revolving Credit Loans shown on the records of such
Lender shall be rebuttably presumptive evidence of the principal amount owing and unpaid on such
Revolving Credit Note, as the case may be.



     (d) Notice of Borrowing. The obligation of each Lender to make Revolving Credit Loans
comprising a Revolving Credit Borrowing under the Revolving Credit Facility is conditioned upon
receipt by the Agent of a request by Holdings on behalf of the Borrowers not later than 12:00 noon
(Cleveland, Ohio time) (i) on the Banking Day which is the requested date of a proposed Revolving
Credit Borrowing comprised of Prime Rate Loans and (ii) on a day which is three (3) Banking Days
prior to the Banking Day which is the requested date of a proposed Revolving Credit Borrowing
comprised of LIBOR Loans (except that the Revolving Credit Borrowing requested on the Restatement
Date may be comprised of LIBOR Loans so long as each of the Lenders shall have agreed to make LIBOR
Loans on the Restatement Date without the notice required by this Section 3.l(d) and the Borrowers
shall have agreed in a writing satisfactory in form and substance to the Agent to indemnify the
Lenders in respect of any loss suffered by reason of such accommodation). Each such request (a
“Notice of Borrowing”) shall be transmitted by Holdings on behalf of the Borrowers to the Agent by
telecopier, email or such other means as the Agent agrees to in writing, substantially in the form
of Exhibit B, specifying therein the requested (A) date of the Revolving Credit Loans comprising
such Revolving Credit Borrowing, (B) Type of Revolving Credit Loans comprising such Revolving
Credit Borrowing, (C) aggregate amount of such Revolving Credit Loans and (D) in the case of a
proposed Revolving Credit Borrowing comprised of LIBOR Loans, the initial Interest Period for such
Revolving Credit Loans. The Borrowers may give a Notice of Borrowing telephonically so long as
written confirmation of such Revolving Credit Borrowing by delivery of written Notice of Borrowing
is received by the Agent by 1:00 p.m. (Cleveland, Ohio time) on the same day such telephonic Notice
of Borrowing is given. The Agent may rely on such telephonic Notice of



26









 




Borrowing to the same extent that the Agent may rely on a written Notice of Borrowing. Each
Notice of Borrowing and telephonic Notice of Borrowing shall be irrevocable and binding on the
Borrowers and subject to the indemnification provisions of this Article 3. The Borrowers shall
bear all risks related to the giving of a Notice of Borrowing telephonically or by such other
method of transmission as Holdings on behalf of the Borrowers shall elect. The Agent shall give to
each Lender reasonably prompt notice by telecopier or email on the day received of each such Notice
of Borrowing.




     (e) Lenders to Fund Agent. Each Lender shall, before the later of one (1) hour after
the Agent issues its notice to such Lender of a Notice of Borrowing or 2:00 P.M. (Cleveland, Ohio
time) on the date of each Revolving Credit Borrowing, make available to the Agent, in immediately
available funds at the account of the Agent maintained at the Payment Office as specified by the
Agent to the Lenders prior to such date, such Lender’s Ratable Portion of the Revolving Credit
Loans comprising such Revolving Credit Borrowing. On the date requested by Holdings on behalf of
the Borrowers for a Revolving Credit Borrowing, after the Agent’s receipt of the funds representing
a Lender’s Ratable Portion of such Revolving Credit Borrowing and upon the Borrowers’ fulfillment
of the applicable conditions set forth in this Article 3, the Agent will make the funds of such
Lender available to the Borrowers at the aforesaid applicable Payment Office.



     (f) Availability Of Funds. Unless the Agent shall have received notice from a Lender
prior to the date (except in the case of Prime Rate Loans, in which case prior to the time) of any
Revolving Credit Borrowing that such Lender will not make available to the Agent such Lender’s
Ratable Portion of the Revolving Credit Borrowing, the Agent may assume that such Lender has made
its Ratable Portion of the Revolving Credit Borrowing available to the Agent on the date of the
Revolving Credit Borrowing in accordance with Section 3.1(e). In reliance upon such assumption,
the Agent may, but shall not be obligated to, make available to the Borrowers on such date a
corresponding portion of the Revolving Credit Borrowing. If and to the extent that such Lender
shall not have made available to the Agent its Ratable Portion of the Loans to be made as to the
Revolving Credit Borrowing, such Lender and the Borrowers severally agree to repay to the Agent,
immediately upon demand, the corresponding portion of the Revolving Credit Borrowing, together with
interest thereon, for each day from the date such amount is made available to the Borrowers until
the date such amount is repaid to the Agent (i) in the case of the Borrowers, at the interest rate
applicable at the time to the Revolving Credit Loans comprising such Revolving Credit Borrowing and
(ii) in the case of such Lender, the greater of the Fed Funds Rate and a rate reasonably determined
by the Agent in accordance with banking industry rules on interbank compensation. If such Lender
shall repay to the Agent such corresponding portion of the Revolving Credit Borrowing, the amount
so repaid shall constitute such Lender’s Ratable Portion as part of such Revolving Credit
Borrowing.



     (g) Failure of Lender to Loan. The failure of any Lender to make the Loan to be made
by it as its Ratable Portion of any Revolving Credit Borrowing shall not relieve any other Lender
of its obligation hereunder to make its Loan on the date of such Revolving Credit Borrowing. No
Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such
other Lender on the date of any Revolving Credit Borrowing.



27









 





     (h) Rate Conversion and Continuation. The Borrowers shall have the right to cause a
Rate Conversion or Rate Continuation in respect of Revolving Credit Loans then outstanding, upon
request delivered by Holdings on behalf of the Borrowers to the Agent not later than 12:00 noon
(Cleveland, Ohio time) (i) on the day which is the Banking Day that the Borrowers desire to convert
any LIBOR Loans comprising a Revolving Credit Borrowing into Prime Rate Loans so as to comprise a
Revolving Credit Borrowing, (ii) on the day that is three (3) Banking Days prior to the Banking Day
upon which the Borrowers desire to convert any Prime Rate Loans comprising a Revolving Credit
Borrowing into LIBOR Loans for a given Interest Period so as to comprise a Revolving Credit
Borrowing, (iii) on the day which is three (3) Banking Days prior to the Banking Day upon which the
Borrowers desire to continue any LIBOR Loans comprising a given Revolving Credit Borrowing as LIBOR
Loans for an additional Interest Period of the same duration so as to comprise a Revolving Credit
Borrowing, (iv) on the day which is three (3) Banking Days prior to the Banking Day upon which the
Borrowers desire to convert any LIBOR Loans having a particular Interest Period comprising a
Revolving Credit Borrowing into LIBOR Loans having a different permissible Interest Period so as to
comprise a Revolving Credit Borrowing, provided, however, that each such Rate Conversion or Rate
Continuation shall be subject to the following:




     (A) each Rate Conversion or Rate Continuation shall be funded among the Lenders based
upon each Lender’s Ratable Portion of such converted or continued Revolving Credit Loans
comprising a Revolving Credit Borrowing;




     (B) if less than all the outstanding principal amount of the Revolving Credit Loans
comprising a Revolving Credit Borrowing is converted or continued, the aggregate principal
amount of such Revolving Credit Loans converted or continued shall be (1) in the case of
LIBOR Loans, not less than Three Million Dollars ($3,000,000) or additional increments of
One Million Dollars ($1,000,000) in excess thereof, and (2) in the case of Prime Rate Loans,
not less than Five Hundred Thousand Dollars ($500,000) or additional increments of One
Hundred Thousand Dollars ($100,000) in excess thereof;




     (C) each Rate Conversion or Rate Continuation shall be effected by each Lender by
applying the proceeds of the Loan resulting from such Rate Conversion or Rate Continuation
to the Loan of such Lender being converted or continued, as the case may be, and the accrued
interest on any such Loan (or portion thereof) being converted or continued shall be paid to
the Agent on behalf of each Lender by the Borrowers at the time of such Rate Conversion or
Rate Continuation;




     (D) LIBOR Loans may not be converted or continued at a time other than the end of the
Interest Period applicable thereto unless the Borrowers shall pay, upon demand, any amounts
due to the Lenders pursuant to Section 3.3(d);




     (E) Revolving Credit Loans comprising a Revolving Credit Borrowing may not be converted
into or continued as LIBOR Loans less than one month prior to the last day of the Commitment
Period or for an Interest Period which would continue after the last day of the Commitment
Period;



28









 






     (F) LIBOR Loans comprising a Revolving Credit Borrowing that cannot be converted into
or continued as LIBOR Loans by reason of clause (E) shall be automatically converted at the
end of the Interest Period in effect for such LIBOR Loans into Prime Rate Loans comprising a
Revolving Credit Borrowing; and




     (G) in connection with any Rate Conversion or Rate Continuation, no Interest Period can
be selected which ends after the date of any reduction in the Total Commitment Amount
unless, after giving effect to such selection, the aggregate unpaid principal amount of any
then outstanding Prime Rate Loans taken together with the principal amount of any then
outstanding LIBOR Loans having Interest Periods ending on or prior to the date of such
reduction shall be at least equal to the principal amount of the Revolving Credit Loans due
and payable on or prior to such reduction date.


Each such request for a conversion or continuation (a “Rate Conversion/Continuation Request”) in
respect of Revolving Credit Loans comprising a Revolving Credit Borrowing shall be transmitted by
Holdings on behalf of the Borrowers to the Agent, by telecopier, email or such other means as the
Agent agrees to in writing, in substantially the form of Exhibit C hereto, specifying (A) the
identity and amount of the Revolving Credit Loans comprising a Revolving Credit Borrowing that the
Borrowers request be converted or continued, (B) the Type of Revolving Credit Loans into which such
Revolving Credit Loans are to be converted or continued, (C) if such notice requests a Rate
Conversion, the date of the Rate Conversion (which shall be a Banking Day) and (D) in the case of
Revolving Credit Loans comprising a Revolving Credit Borrowing being converted into or continued as
LIBOR Loans, the Interest Period for such LIBOR Loans. The Borrowers may make Rate
Conversion/Continuation Requests telephonically so long as written confirmation of such Revolving
Credit Borrowing is received by the Agent by 1:00 p.m. (Cleveland, Ohio time) on the same day of
such telephonic Rate Conversion/Continuation Request. The Agent may rely on such telephonic Rate
Conversion/Continuation Request to the same extent that the Agent may rely on a written Rate
Conversion/Continuation Request. Each Rate Conversion/Continuation Request, whether telephonic or
written, shall be irrevocable and binding on the Borrowers and subject to the indemnification
provisions of this Article 3. The Borrowers shall bear all risks related to its giving any Rate
Conversion/Continuation Request telephonically or by such other method of transmission as Holdings
on behalf of the Borrowers shall elect. The Agent shall promptly deliver on the day received a
copy of each such Rate Conversion/Continuation Request to the Lenders by telecopier or email.




     SECTION 3.2 Optional Reductions; Termination Of Commitments. The Borrowers may, at
any time and without payment of premium or penalty except as set forth in Section 3.3, terminate in
whole or from time to time in part reduce the Total Commitment Amount of the Lenders by delivering
to the Agent, not later than 12:00 noon (Cleveland, Ohio time) three (3) Banking Days immediately
preceding the effective date of the reduction, a notice of such reduction (a “Reduction Notice”),
stating the amount by which the Total Commitment Amount is to be reduced and the effective date of
such reduction. Each reduction shall be subject to the following: (i) each such reduction shall be
in an aggregate principal amount of not less than Five Million Dollars ($5,000,000) or any integral
multiple of $1,000,000 in excess thereof and (ii) each such reduction shall be in an amount such
that the Total Commitment Amount, as so



29









 




reduced, is not less than an amount equal to the aggregate of (A) the aggregate principal
amount of the Revolving Credit Loans then outstanding hereunder, plus (B) the aggregate
Risk Participation Exposure. The Borrowers shall not be permitted to reduce the Total Commitment
Amount unless, concurrently with any reduction, the Borrowers shall make a principal payment on
each Lender’s then outstanding Revolving Credit Loans in an amount equal to the excess, if any, of
such Revolving Credit Loans, plus the aggregate Risk Participation Exposure, over
the Commitment of such Lender as so reduced. The Agent shall promptly notify each Lender of its
proportionate amount and the date of each such reduction. From and after each such reduction, the
Facility Fees payable hereunder shall be calculated upon the Commitments of the Lenders as so
reduced. Each reduction of the aggregate Commitments shall be made among the Lenders in accordance
with their respective Ratable Portions and shall be allocated ratably to the Total Commitment
Amount. Any partial reduction in the Total Commitment Amount shall be irrevocable and effective
during the remainder of the Commitment Period. If the Borrowers terminate in whole the Commitments
of the Lenders, on the effective date of such termination (the Borrowers having prepaid in full the
unpaid principal balance, if any, of the Notes outstanding, together with all interest (if any) and
Facility Fees accrued and unpaid and all other amounts due to the Agent or the Lenders hereunder,
including, without limitation, the satisfaction of all Obligations in respect of Letters of
Credit), all of the Notes outstanding shall be delivered to the Agent marked “Canceled” and
redelivered to the Borrowers.




     SECTION 3.3 Repayments and Prepayments; Prepayment Compensation.



     (a) Principal Repayment. The Borrowers shall repay to the Agent for the account of
the Lenders the outstanding principal amount of the Revolving Credit Loans under the Revolving
Credit Facility (together with all accrued and unpaid interest, Facility Fees, and any other
amounts owing to the Lenders, or any thereof, under this Agreement) on the last day of the
Commitment Period (or in the case of a termination of the Commitment Period pursuant to Section
3.3(e), below, on the date that is 30 days thereafter) or upon acceleration pursuant to Section
12.1 or 12.2.



     (b) Permitted Prepayments. Except as set forth in Section 3.3(d), the Borrowers may
prepay, without penalty or premium, not later than 12:00 noon (Cleveland, Ohio time): (i) in the
case of any LIBOR Loan, at least three (3) Banking Days’ notice to the Agent prior to the date
fixed for such prepayment; and (ii) in the case of any Prime Rate Loan, upon notice to the Agent
not later than 12:00 noon (Cleveland, Ohio time) on the date fixed for such prepayment, in each
case stating the proposed date and aggregate principal amount of the prepayment, and, upon such
notice, shall prepay the outstanding aggregate principal amount of the Revolving Credit Loans
comprising part of the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid; provided, however,
that (A) each partial prepayment of LIBOR Loans shall be in an aggregate principal amount of Three
Million Dollars ($3,000,000) or additional increments of One Million Dollars ($1,000,000) in excess
thereof, and (B) each partial prepayment of Prime Rate Loans shall be in an aggregate principal
amount of Five Hundred Thousand Dollars ($500,000) or additional increments of One Hundred Thousand
Dollars ($100,000) in excess thereof. Any prepayment of any LIBOR Loans made on other than the
last day of an Interest Period shall obligate the Borrowers to reimburse the Lenders in respect
thereof pursuant to Section 3.3(d). Upon receipt



30









 




by the Agent of a notice pursuant to this Section 3.3(b), the Agent shall promptly forward a
copy of such notice, by telecopier or email in the case of a prepayment of LIBOR Loans comprising
Revolving Credit Borrowing, to each of the Lenders.




     (c) Mandatory Prepayments. If on any Banking Day the aggregate outstanding amount of
the Revolving Credit Loans under the Revolving Credit Facility plus the aggregate Risk
Participation Exposures exceeds the Total Commitment Amount then in effect, the Borrowers shall on
such day prepay an aggregate principal amount of the related Revolving Credit Loans in an amount at
least equal to such excess, together with accrued interest to the date of such prepayment on the
principal amount prepaid, to the Agent for the account of each of the Lenders ratably in accordance
with their Commitments. Any prepayment of any LIBOR Loans made pursuant to this Section 3.3(c) on
other than the last day of an Interest Period shall obligate the Borrowers to reimburse the Lenders
in respect thereof pursuant to Section 3.3(d).



     (d) Breakage Compensation. The Borrowers shall compensate each applicable Lender,
upon its written request (which request shall set forth the detailed basis for requesting and the
method of calculating such compensation), for all reasonable losses (including loss of profits),
expenses and liabilities (including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by such Lender to
fund its LIBOR Loans) which such Lender may sustain: (i) if for any reason (other than a default
by such Lender or the Agent), a Credit Event of LIBOR Loans does not occur on a date specified
therefor in a Notice of Borrowing or Rate Conversion/Continuation Request (whether or not rescinded
or withdrawn by or on behalf of the Borrowers or deemed rescinded or withdrawn pursuant to this
Agreement); (ii) if any repayment, prepayment, Rate Continuation or Rate Conversion of any of its
LIBOR Loans occurs on a date which is not the last day of an Interest Period applicable thereto;
(iii) if any prepayment of any of its LIBOR Loans is not made on any date specified in a notice of
prepayment given by the Borrowers; (iv) if such Lender transfers its LIBOR Loans pursuant to a
request by the Borrowers under Section 3.9(d) hereof; or (vi) as a consequence of any other default
by the Borrowers to repay its LIBOR Loans when required by the terms of this Agreement or any other
election by the Borrowers pursuant to the terms hereof.



     (e) Prepayment of Obligations upon Change of Control. (i) In the event that any
Change of Control shall occur or Holdings shall have knowledge of any proposed Change of Control,
Holdings shall give written notice (the “Borrower Notice”) of such fact to the Agent and each
Lender. The Borrower Notice shall be delivered promptly upon receipt of such knowledge by Holdings
and in any event no later than three (3) Banking Days following the occurrence of any Change of
Control. The Borrower Notice shall (A) describe the facts and circumstances of such Change of
Control in reasonable detail, (B) make reference to this Section 3.3(e) and the right of the
Majority Lenders to require prepayment and discharge in full of the Loans and all of the other
Obligations on the terms and conditions provided for in this Section 3.3(e), and (C) offer in
writing to prepay in full, no later than the Acceptance Prepayment Date (defined below), the
outstanding principal of the Loans, together with accrued interest to the date of prepayment and
all of the other Obligations, including, without limitation, the cancellation of all outstanding
Letters of Credit (or, at the option of the Borrowers, the deposit with the Letter of Credit
Issuer, on terms satisfactory to the Letter of Credit Issuer, of cash collateral in an amount equal
the



31









 




aggregate of the respective Stated Amounts of all such Letters of Credit) and any breakage
compensation under Section 3.3(d), above. The Agent (at the instruction of the Majority Lenders)
shall have the right to accept such offer on behalf of all of the Lenders and require the
prepayment and discharge in full of the outstanding principal of all of the Loans, together with
accrued interest to the date of prepayment and all of the other Obligations, including, without
limitation, the cancellation of all outstanding Letters of Credit (or, at the option of the
Borrowers, the deposit with the Letter of Credit Issuer, on terms satisfactory to the Letter of
Credit Issuer, of cash collateral in an amount equal the aggregate of the respective Stated Amounts
of all such Letters of Credit) and any breakage compensation under Section 3.3(d), above, by
written notice to Holdings (the “Acceptance Notice”) given not later than twenty (20) days after
the Agent’s receipt of the Borrower Notice. If the Agent (at the instruction of the Majority
Lenders) accepts such offer, (1) the Borrowers shall, no later than the date (the “Acceptance
Prepayment Date”) that is thirty (30) days after the date on which the Agent delivers the
Acceptance Notice to Holdings, prepay and discharge in full the outstanding principal of all of the
Loans, together with accrued interest to the date of prepayment and all of the other Obligations,
including, without limitation, the cancellation of all outstanding Letters of Credit (or, at the
option of the Borrowers, the deposit with the Letter of Credit Issuer, on terms satisfactory to the
Letter of Credit Issuer, of cash collateral in an amount equal the aggregate of the respective
Stated Amounts of all such Letters of Credit) and any breakage compensation under Section 3.3(d),
above, and (2) on the date on which the Agent delivers the Acceptance Notice to Holdings, the
Commitment of each Lender shall terminate in full.




     (ii) Without limiting the provisions of paragraph (i), above, if Holdings fails to give the
Borrower Notice required by paragraph (i), above, upon and after the occurrence of a Change of
Control, the Agent shall have the right (at the instruction of the Majority Lenders), by delivery
of written notice to Holdings (the “Demand Notice”), to require the Borrowers to prepay and
discharge, and the Borrowers shall prepay and discharge, in full the outstanding principal of all
of the Loans, together with accrued interest to the date of prepayment and all of the other
Obligations, including, without limitation, the cancellation of all outstanding Letters of Credit
(or, at the option of the Borrowers, the deposit with the Letter of Credit Issuer, on terms
satisfactory to the Letter of Credit Issuer, of cash collateral in an amount equal the aggregate of
the respective Stated Amounts of all such Letters of Credit) and any breakage compensation under
Section 3.3(d), above. The Demand Notice shall be delivered by the Agent (upon instruction of the
Majority Lenders) to Holdings at any time after the Agent or any Lender has knowledge of such
Change of Control. Upon delivery of the Demand Notice to Holdings, (1) the Borrowers shall, no
later than the date (the “Demand Prepayment Date”) that is thirty (30) days after the date on which
the Agent delivers the Demand Notice to Holdings, prepay and discharge in full the outstanding
principal of all of the Loans, together with accrued interest to the date of prepayment and all of
the other Obligations, including, without limitation, the cancellation of all outstanding Letters
of Credit (or, at the option of the Borrowers, the deposit with the Letter of Credit Issuer, on
terms satisfactory to the Letter of Credit Issuer, of cash collateral in an amount equal the
aggregate of the respective Stated Amounts of all such Letters of Credit) and any breakage
compensation under Section 3.3(d), above, and (2) on the date on which the Agent delivers the
Demand Notice to Holdings, the Commitment of each Lender shall terminate in full.




32












 





     (iii) Compliance with the provisions of paragraph (ii) of this Section 3.3(e) shall not be
deemed to constitute a waiver of, or consent to, any Incipient Default or Event of Default caused
by any breach of the obligations of Holdings under paragraph (i) of this Section 3.3(e); and,
without limiting the generality of the provisions of Section 11.1, below, the failure of the
Borrowers timely to prepay and discharge in full all of the Obligations if required under and
pursuant to either of paragraph (i) or (ii), above, shall constitute an Event of Default under said
Section 11.1.



     SECTION 3.4 Fees.



     (a) Facility Fee. The Borrowers agree during the Commitment Period to pay to each
Lender, through the Agent, at the dates specified herein, a facility fee (the “Facility Fee”) at a
rate per annum equal to the Applicable Fee Percentage from time to time in effect for Facility
Fees, as determined pursuant to Section 3.4(b), on the Commitment of such Lender. Such Facility
Fee shall be payable in arrears on each Quarterly Payment Date, commencing December 31, 2009 (on
which date shall also be paid any “Facility Fee” accrued and unpaid under the Existing Credit
Agreement), for the calendar quarter year, or portion thereof, then ending and on the earlier date
on which the Commitment of such Lender shall be terminated or assigned in whole (or in the case of
a termination of the Commitment of such Lender pursuant to Section 3.3(e), above, on the date that
is 30 days thereafter). Notwithstanding the foregoing, so long as any Lender is a Defaulting
Lender, the Facility Fee shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender.



     (b) Determination of Applicable Fee Percentage. The Applicable Fee Percentage shall be
adjusted as herein specified as of the first day of the Commitment Period and thereafter as of each
Fee Adjustment Date, commencing with the Fee Adjustment Date on December 1, 2009, by reference to
(A) the financial statements required by Section 8.1(a) or Section 8.1(b), as the case may be, for
the period ending as of the Fee Determination Date for such Fee Adjustment Date and (B) a
certificate complying with Section 8.1(c)(ii) certifying the Net Leverage Ratio as of such Fee
Determination Date. As of any such Fee Adjustment Date and during the Accrual Period commencing on
such date, the Applicable Fee Percentage for Facility Fees shall be the Applicable Fee Percentage
therefor indicated in the definition of the term “Applicable Fee Percentage” corresponding to the
Net Leverage Ratio as of the Fee Determination Date for such Fee Adjustment Date. Any such
adjustment of the Applicable Fee Percentage shall cease to be effective from the next Fee
Adjustment Date.



     (c) Risk Participation Fee. The Borrowers shall pay to the Letter of Credit Issuer,
and the Letter of Credit Issuer shall share with the Lenders, on a pro rata basis based on their
respective Ratable Portions, a risk participation fee (the “Risk Participation Fee”) in an amount
equal to the per annum rate equal to the Applicable LIBOR Percentage in effect pursuant to Section
3.5(b), times the Stated Amount of each Letter of Credit from time to time outstanding.
The Borrowers shall pay the Risk Participation Fee to the Letter of Credit Issuer quarterly in
arrears on each Quarterly Payment Date, commencing December 31, 2009 (on which date shall also be
paid any “Risk Participation Fee” accrued and unpaid under the Existing Credit Agreement), for the
calendar quarter year, or portion thereof, then ending and on the earlier date on which the
Commitments expire or are terminated. Upon receipt of any Risk Participation



33









 




Fee, the Letter of Credit Issuer shall pay such Risk Participation Fees to the Agent for the account of the Lenders.




     (d) Fronting Fee. The Borrowers shall pay to the Letter of Credit Issuer for its own
account a fronting fee in an amount equal to the Stated Amount of each Letter of Credit from time
to time outstanding, times twelve and one half (12.50) Basis Points per annum, which fee
shall be payable quarterly in arrears on each Quarterly Payment Date, commencing December 31, 2009
(on which date shall also be paid any fronting fee accrued and unpaid under the Existing Credit
Agreement), for the calendar quarter year, or portion thereof, then ending and on the earlier date
on which the Commitments expire or are terminated.



     (e) Up Front Fee. The Borrowers shall pay to the Agent, for the ratable benefit of
the Lenders, on the Restatement Date a fee in the amount of Four Hundred Fifty Thousand Dollars
($450,000.00), which fee shall be deemed fully earned on the Restatement Date.



     (f) Agency Fee. The Borrowers shall pay to the Agent in advance on the Restatement
Date and on each anniversary thereof during the Commitment Period an agency fee in the amount set
forth in the Fee Letter, which fee shall be deemed fully earned on each such date.



     (g) Fees Nonrefundable. All fees set forth in this Section 3.4 and closing fees
payable pursuant to Sections 6.1 and 6.2 shall be paid on the date due, in immediately available
funds, to the Agent for distribution, if and as appropriate, to the Lenders and, once paid, none of
such fees shall be refundable under any circumstances.



     SECTION 3.5 Interest.



     (a) Regular Interest. The Borrowers shall pay interest on the unpaid principal amount
of each Loan made by each Lender from the date of such Loan until such principal amount shall be
paid in full at the following times and rates per annum:




     (i) Prime Rate Loans. During such periods as a Revolving Credit Loan is a Prime
Rate Loan, a rate per annum equal to the sum of the Prime Rate in effect from time to time
plus the Applicable Prime Rate Percentage in effect from time to time, payable
quarterly, in arrears, on each Quarterly Payment Date (including, on December 31, 2009, any
accrued and unpaid interest on “Prime Rate Loans” under the Existing Credit Agreement) and
on the date such Prime Rate Loan shall be converted or paid in full and at maturity (whether
by reason of acceleration or otherwise).




     (ii) LIBOR Loans. During such periods as a Revolving Credit Loan is a LIBOR
Loan, a rate per annum equal to the sum of the Adjusted LIBOR for the Interest Period of
such LIBOR Loan, plus the Applicable LIBOR Percentage in effect from time to time
during the Interest Period of such LIBOR Loan, in accordance with Section 3.1(h), payable
(A) on the last day of each Interest Period and (B) if such Interest Period has a duration
of more than three months, three months after the first day of such Interest Period and (C)
on the date such LIBOR Loan shall be converted to a Prime Rate Loan or



34









 




to a LIBOR Loan of a different Interest Period or paid in full and at maturity (whether by reason of acceleration
or otherwise). The interest period of any “LIBOR Loan” under the Existing Credit Agreement
outstanding on the Restatement Date shall continue to the end of its stated term, on which
date all interest on such Loan, including interest accrued and unpaid under the Existing
Credit Agreement, shall be payable.




     (b) Applicable LIBOR Percentage; Applicable Prime Rate Percentage; Terms of
Adjustment.




     (i) Commencement; Conditions. The Applicable LIBOR Percentage and Applicable
Prime Rate Percentage shall each be adjusted as herein specified as of the first day of the
Commitment Period and thereafter as of each Interest Adjustment Date, commencing with the
Interest Adjustment Date on December 1, 2009, by reference to (A) the financial statements
required by Section 8.1(a) or Section 8.1(b) for the period ending as of the Interest
Determination Date for such Interest Adjustment Date and (B) a certificate complying with
Section 8.l(c)(ii) certifying the Net Leverage Ratio as of such Interest Determination Date.




     (ii) Calculation and Duration of Adjustment. On each Interest Adjustment Date
and during the Accrual Period commencing on such date, (a) the Applicable LIBOR Percentage
shall be the percent per annum in Basis Points indicated in the definition of the term
“Applicable LIBOR Percentage” corresponding to the Net Leverage Ratio as of the Interest
Determination Date for such Interest Adjustment Date and (b) the Applicable Prime Rate
Percentage shall be the percent per annum in Basis Points indicated in the definitions of
the term “Applicable Prime Rate Percentage” corresponding to the Net Leverage Ratio as of
the Interest Determination Date for such Interest Adjustment Date.



     (c) Interest on Unpaid Obligations; Interest upon Event of Default. If any principal,
interest or fees or other sum due under this Agreement shall not be paid when due, or if any
Revolving Credit Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of time or by operation of any
provision of acceleration of maturity therein contained (and without waiving any Event of Default
resulting therefrom or limiting any right or remedy of the Lenders or the Agent in respect
thereof), the principal thereof and the unpaid interest and fees thereon, or such fees or other sum
shall bear interest, payable on demand, at the Increased Rate from time to time in effect in
respect of such Loan or other Obligation. The Borrowers acknowledge that this calculation will
result in the accrual of interest on interest and the Borrowers expressly consent and agree to this
provision. In addition, notwithstanding anything to the contrary contained in this Agreement, upon
and during the continuance of an Event of Default, but without waiving such Event of Default or
limiting any right or remedy of the Lenders or the Agent in respect thereof, all of the Obligations
shall bear interest at the Increased Rate.



     (d) Interest Rate Determination.




     (i) Agent Determination; Notice. The Agent shall determine the Prime Rate and
Adjusted LIBOR in accordance with the definitions of Prime Rate, LIBOR and



35









 






Adjusted LIBOR set forth in Section 1.1. The Agent shall give prompt notice to the Borrowers and the
Lenders of the applicable interest rate determined by the Agent for purposes of Section
3.5(a)(i) or (ii).




     (ii) Failure of Borrowers To Elect. If no Interest Period is specified in any
Notice of Borrowing for any LIBOR Loans comprising a Revolving Credit Borrowing, the
Borrowers shall be deemed to have selected instead Prime Rate Loans. If Holdings, on behalf
of the Borrowers, shall not have given notice in accordance with Section 3.1(h) to continue
any LIBOR Loans comprising a Revolving Credit Borrowing into a subsequent Interest Period
(and shall not have otherwise delivered a Rate Conversion/Continuation Request in accordance
with Section 3.1(h) to convert such Loans), subject to the limitations set forth in Section
3.1(h), such LIBOR Loans shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically shall be converted to (or, as the case
may be, continued as) LIBOR Loans having an Interest Period of one (1) month, provided that
if such limitations of Section 3.1(h) would not be complied with, such LIBOR Loans
automatically shall be converted to Prime Rate Loans.



     SECTION 3.6 Payments and Computations.



     (a) Payments. The Borrowers shall make each payment hereunder and under the Notes
with respect to principal of, interest on, and other amounts relating to Revolving Credit Loans,
not later than 11:00 A.M. (Cleveland, Ohio time) on the day when due in dollars to the Agent in
immediately available funds by deposit of such funds to the Agent’s account maintained at the
Payment Office. Payments received after 12:00 noon (Cleveland, Ohio time) on any day shall be
deemed to have been received on the next succeeding Banking Day. The Agent will promptly
thereafter, on the same Banking Day, cause to be distributed like funds relating to the payment of
principal, interest, Facility Fees, or other fees or other amounts which may be received in respect
of the Obligations of the Borrowers under this Agreement ratably (other than amounts payable
pursuant to the express terms of this Agreement solely to the Agent or the Letter of Credit Issuer,
as the case may be) to each of the Lenders for the account of its respective Lending Office, and
like funds relating to the payment of any other amount payable to any Lender to such Lender for the
account of its Lending Office. The funds so distributed to each Lender shall in each case be
applied by such Lender in accordance with the terms of this Agreement. Notwithstanding the
foregoing, the Agent shall be entitled to set off any funding shortfall against any Defaulting
Lender’s Ratable Portion of all payments received from the Borrowers and hold, in a non-interest
bearing account, all payments received by the Agent for the benefit of any Defaulting Lender
pursuant to this Agreement as cash collateral for any unfunded reimbursement obligations of such
Defaulting Lender until the Obligations are paid in full in cash, all Risk Participation Exposure
has been discharged or cash collateralized and all Commitments have been terminated, and upon such
unfunded obligations owing by a Defaulting Lender becoming due and payable, the Agent shall be
authorized to use such cash collateral to make such payment on behalf of such Defaulting Lender.
Any amounts owing by a Defaulting Lender to the Agent which are not paid when due shall accrue
interest at the interest rate applicable during such period to Revolving Credit Loans that are
Prime Rate Loans.



36









 





     (b) Authorization to Charge Account. If and to the extent payment owed to any Lender
is not made when due hereunder or under the Note held by such Lender, each Borrower hereby
authorizes such Lender to charge from time to time against any or all of such Borrower’s general
deposit accounts with such Lender any amount so due. Any Lender exercising the foregoing authorization will endeavor to advise such Borrower
of such exercise reasonably promptly thereafter; provided, however, that such Lender’s failure to
do so shall not subject such Lender, the Agent or any other Lender to liability or claim of any
nature whatsoever and shall not create in any Borrower any set-off, defense or other claim of any
nature whatsoever.



     (c) Computations of Interest and Fees. All computations of interest, Facility Fees,
and Risk Participation Fees and all other fees shall be made by the Agent, (i) in the case of LIBOR
Loans, Risk Participation Fees, and Facility Fees, on the basis of a year of 360 days, and (ii) in
the case of Prime Rate Loans, on the basis of a year of 365/366 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each determination by the Agent (or, in the case of
Section 3.7, by a Lender) of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.



     (d) Payment Not on Banking Day. Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day, except, that, if such extension would cause payment of interest on or
principal of LIBOR Loans to be made in the next following calendar month, such payment shall be
made on the immediately preceding Banking Day. Any such extension or reduction of time shall in
such case be included in the computation of payment of interest or Facility Fee, as the case may
be.



     (e) Presumption of Payment in Full by Borrowers. Unless the Agent shall have received
notice from Holdings, on behalf of the Borrowers, prior to the date on which any payment is due to
the Lenders hereunder that the Borrowers will not make such payment in full, the Agent may assume
that the Borrowers will make or have made such payment in full to the Agent on such date. In
reliance upon such assumption, the Agent may, but shall not be obligated to, distribute to each
Lender on such due date the amount then due such Lender. If and to the extent the Borrowers shall
not have made such payment in full to the Agent, each Lender shall repay to the Agent promptly upon
demand the amount distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate plus the amount of any costs, expenses, liabilities or losses
incurred by the Agent in connection with its distribution of such funds, unless such costs,
expenses, liabilities or losses are the result of the gross negligence or willful misconduct of the
Agent.



     SECTION 3.7 Reserves; Taxes; Indemnities.



     (a) Reserves or Deposit Requirements. If at any time any Law (including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the
interpretation thereof by any governmental authority charged with the administration thereof or any
central bank or other fiscal, monetary or other authority shall impose (whether or not having



37









 




the force of Law), modify or deem applicable any reserve and/or special deposit requirement (other than
reserves included in the Reserve Percentage, the effect of which is reflected in the interest
rate(s) of the LIBOR Loan(s) in question) against assets held by, or deposits in or for the amount
of any loans by, any Lender, and the result of the foregoing is to increase the cost (whether by
incurring a cost or adding to a cost) to such Lender of making or maintaining hereunder LIBOR Loans
or to reduce the amount of principal or interest received by such Lender with respect to such LIBOR
Loans, then upon demand by such Lender the Borrowers shall pay to such Lender from time to time on
Interest Adjustment Dates with respect to such loans, as additional consideration hereunder,
additional amounts sufficient to fully compensate and indemnify such Lender for such increased cost
or reduced amount, assuming (which assumption such Lender need not corroborate) such additional
cost or reduced amount was allocable to such LIBOR Loans; provided, that such Lender shall be
generally assessing such amounts on a non-discriminatory basis against borrowers under agreements
having provisions similar to this Section 3.7(a). A certificate as to the increased cost or
reduced amount as a result of any event mentioned in this Section 3.7(a), setting forth the
calculations therefor, shall be promptly submitted by such Lender to the Borrowers and shall be
rebuttably presumptive evidence as to the amount thereof. Notwithstanding any other provision of
this Agreement, after any such demand for compensation by any Lender, the Borrowers, upon at least
three (3) Banking Days’ prior written notice to such Lender through the Agent, may prepay the
affected LIBOR Loans in full or convert all LIBOR Loans to Prime Rate Loans regardless of the
Interest Period of any thereof. Any such prepayment or conversion shall entitle the Lenders to the
prepayment compensation provided for in Section 3.3 hereof. Each Lender will notify the Borrowers
as promptly as practicable (with a copy thereof delivered to the Agent) of the existence of any event which will likely require the payment by
the Borrowers of any such additional amount under this Section.




     (b) Imposition of Taxes. In the event that by reason of any Law, regulation or
requirement or in the interpretation thereof by an official authority, or the imposition of any
requirement of any central bank whether or not having the force of Law, any Lender shall, with
respect to this Agreement or any transaction under this Agreement, be subjected to any tax, levy,
impost, charge, fee, duty, deduction or withholding of any kind whatsoever (other than any tax
imposed upon the total net income of such Lender) and if any such measures or any other similar
measure shall result in an increase in the cost to such Lender of making or maintaining any LIBOR
Loan or in a reduction in the amount of principal, interest or commitment fee receivable by such
Lender in respect thereof, then such Lender shall promptly notify the Borrowers in writing stating
the reasons therefor. The Borrowers shall thereafter pay to such Lender upon demand from time to
time on Interest Adjustment Dates with respect to such LIBOR Loans, as additional consideration
hereunder, such additional amounts as will fully compensate such Lender for such increased cost or
reduced amount. A certificate as to any such increased cost or reduced amount, setting forth the
calculations therefor, shall be submitted by such Lender to the Borrowers and shall be rebuttably
presumptive evidence of the amount thereof. Notwithstanding any other provision of this Agreement,
after any such demand for compensation by any Lender, the Borrowers, upon at least three (3)
Banking Days prior written notice to such Lender through the Agent, may prepay the affected LIBOR
Loans in full or convert all LIBOR Loans to Prime Rate Loans regardless of the Interest Period of
any thereof. Any such prepayment or conversion shall entitle the Lenders to prepayment
compensation provided for in Section 3.3 hereof.



38









 





     (c) Eurodollar Deposit Unavailable or Interest Rate Unascertainable. In respect of
any LIBOR Loans, in the event that the Agent or any Lender shall have determined that, by reason of
circumstances affecting such market, adequate and reasonable means do not exist for ascertaining
the LIBOR applicable to such Interest Period, as the case may be, the Agent or such Lender shall
promptly give notice of such determination to the Borrowers and (i) any notice of new LIBOR Loans
(or conversion of existing loans to LIBOR Loans) previously given by the Borrowers and not yet
borrowed (or converted, as the case may be) shall be deemed a notice to make Prime Rate Loans, and
(ii) the Borrowers shall be obligated either to prepay or to convert any outstanding LIBOR Loans on
the last day of the then current Interest Period or Periods with respect thereto. Any such
prepayment or conversion shall entitle the Lenders to prepayment compensation provided for in
Section 3.3 hereof.



     (d) Indemnity. Without prejudice to any other provisions of this Article 3, the
Borrowers hereby agree to indemnify each Lender against any loss or expense which such Lender may
sustain or incur as a consequence of any failure by the Borrowers to accept the proceeds of any
LIBOR Loan, or otherwise consummate a Revolving Credit Borrowing in respect of LIBOR Loans,
requested by the Borrowers pursuant to the provisions of this Agreement and of any default by the
Borrowers in payment when due of any amount due hereunder in respect of any LIBOR Loan, including,
but not limited to, any loss of profit, premium or penalty incurred by such Lender in respect of
funds borrowed by it for the purpose of making or maintaining such LIBOR Loan, as determined by
such Lender in the exercise of its sole but reasonable discretion. A certificate as to any such
loss or expense shall be promptly submitted by such Lender to the Borrowers and shall be rebuttably
presumptive evidence of the amount thereof.



     (e) Changes in Law Rendering LIBOR Loans Unlawful. If at any time any new Law, treaty
or regulation, or any change in any existing Law, treaty or regulation, or any interpretation
thereof by any governmental or other regulatory authority charged with the administration thereof,
shall make it unlawful for any Lender to fund any LIBOR Loans which it is committed to make
hereunder with moneys obtained in the Eurodollar market, the commitment of such Lender to fund
LIBOR Loans shall, upon the happening of such event, forthwith be suspended for the duration of
such illegality, and such Lender shall by written notice to the Borrowers and the Agent declare
that its Commitment with respect to such Loans has been so suspended and, if and when such
illegality ceases to exist, such suspension shall cease and such Lender shall similarly notify the
Borrowers and the Agent. If any such change shall make it unlawful for any Lender to continue in
effect the funding in the applicable Eurodollar market of any LIBOR Loan previously made by it
hereunder, such Lender shall, upon the happening of such event, notify the Borrowers, the Agent and
the other Lenders thereof in writing stating the reasons therefor, and the Borrowers shall, on the
earlier of (i) the last day of the then current Interest Period or (ii) if required by such Law,
regulation or interpretation, on such date as shall be specified in such notice, either convert all
LIBOR Loans to Prime Rate Loans to the extent permissible under this Agreement or prepay all LIBOR
Loans to the Lenders in full. Any such prepayment or conversion shall entitle the Lenders to prepayment compensation as
provided in Section 3.3 hereof.



39









 





     SECTION 3.8 Capital Adequacy. If any Lender shall have determined, that, whether in
effect at the date of this Agreement or hereafter in effect, any applicable Law, rule, regulation
or guideline regarding capital adequacy, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or its Lending
Office) with any request or directive regarding capital adequacy (whether or not having the force
of Law) of any such authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender’s capital allocated to the transactions contemplated by
this Agreement (or the capital of its holding company) as a consequence of its obligations
hereunder to a level below that which such Lender (or its holding company) could have achieved but
for such adoption, change or compliance (taking into consideration such Lender’s policies or the
policies of its holding company with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15 days after demand by such Lender (with a
copy to the Agent), the Borrowers shall pay to such Lender such additional amount or amounts as
will compensate such Lender (or its holding company) for such reduction; provided, that such Lender
shall be generally assessing such amounts on a non-discriminatory basis against borrowers under
agreements having provisions similar to this Section 3.8. Each Lender will designate a different
lending office if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate of any Lender claiming compensation under this section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive and binding in the
absence of manifest error. In determining such amount, such Lender may use any reasonable averaging
and attribution methods. The protection of this Section 3.8 shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of the Law, regulation
or other condition which shall have been imposed.



     SECTION 3.9 Taxes.



     (a) Taxes; Withholding. Any and all payments by the Borrowers hereunder, under the
Notes or the other Loan Documents shall be made, in accordance with the provisions of Article 3,
free and clear of and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the Laws of which such Lender is organized or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as “Taxes”). If the Borrowers shall be required by Law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent,
(i) the sum payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 3.9) such
Lender (as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions, and (iii) the Borrowers shall
pay the full amount deducted to the relevant taxation authority or other authority in accordance
with applicable Law. All such Taxes shall be paid by the Borrowers prior to the date on which
penalties attach thereto or interest accrues thereon; provided, however, that, if any such
penalties or interest become due, the Borrowers shall make



40









 




prompt payment thereof to the appropriate governmental authority. The Borrowers shall indemnify each Lender for the full amount
of such Taxes (including any Taxes on amounts payable under this Section 3.9) paid by the Lender
and any liability (including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted. Any indemnification payment
shall be made within thirty (30) days from the date the Lender makes written demand therefor.




     (b) Stamp Taxes. The Borrowers agree to pay, and will indemnify each Lender and the
Agent for, any present or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this Agreement or the
Notes (hereinafter referred to as “Other Taxes”).



     (c) Other Taxes. The Borrowers shall indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 3.9) paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Any indemnification payment shall be made
within thirty (30) days from the date such Lender or the Agent (as the case may be) makes written
demand therefor.



     (d) [Intentionally Omitted.]



     (e) Request for Refund. At the reasonable request of Holdings, on behalf of the
Borrowers, a Lender or the Agent shall apply at the Borrowers’ expense for a refund in respect of
Taxes or Other Taxes previously paid by the Borrowers pursuant to this Section 3.9.
Notwithstanding the foregoing, none of the Lenders or the Agent shall be obligated to pursue such
refund if, in its sole good faith judgment, such action would be disadvantageous to it. If any
Lender subsequently receives from a taxing authority a refund of any Tax previously paid by the
Borrowers and for which the Borrowers have indemnified the Lender pursuant to this Section 3.9,
such Lender shall within thirty (30) days after receipt of such refund, and to the extent permitted
by applicable Law, pay to the Borrowers the net amount of any such recovery after deducting taxes
and reasonable expenses attributable thereto.



     (f) Exemption Certificate. Not later than the commencement of the Commitment Period
or, in the case of any bank or financial institution that becomes a Lender after such date,
pursuant to Article 14, the date of the instrument of assignment pursuant to which such bank or
financial institution became a Lender, and annually on each Anniversary Date thereafter or at such
other times as the Agent or the Borrowers may request, each Lender organized under the Laws of a
jurisdiction outside the United States shall provide the Agent and the Borrowers with duly
completed copies of Form 1001 or Form 4224 or any successor form prescribed by the Internal Revenue
Service of the United States certifying that such Lender is exempt from United States withholding
taxes with respect to all payments to be made to such Lender hereunder or other document
satisfactory to Holdings, on behalf of the Borrowers, and the Agent indicating that all payments to
be made to such Lender hereunder are not subject to such taxes (each such certificate, an
“Exemption Certificate”). Unless the Agent and Holdings have received an



41









 




Exemption Certificate from such Lender, the Borrowers, or the Agent if the Borrowers have not withheld, may withhold
taxes from such payments at the applicable statutory rate (subject, in the case of the Borrowers to
the requirements of Section 3.9(a)); provided, however, that if the Borrowers have withheld
Holdings shall so notify the Agent. If the Borrowers are required to pay additional amounts to any
Lender pursuant to this Section 3.9, such Lender shall use reasonable efforts to designate a
different Lending Office if such designation will thereafter avoid the need for any additional
payments under this Section 3.9 and will not, in the sole good faith judgment of such Lender, be
otherwise disadvantageous to such Lender in any material respect. A Lender which ceases to be
exempt from United States withholding taxes shall notify the Agent and the Borrowers promptly
thereof.




     (g) Furnishing of Certificate. Within 30 days after the date of any payment of Taxes,
the Borrowers will furnish to the Agent, at its address set forth on the signature page of the
Agent to this Agreement or such other address as the Agent notifies the Lenders, the original or a
certified copy of a receipt evidencing payment thereof.



     (h) Survival of Provision. Without prejudice to the survival of any other agreement
of the parties hereunder, but subject to Section 3.10, below, the respective agreements, rights and
liabilities of the Borrowers, the Agent and the Lenders contained in this Section 3.9 shall survive
the payment in full of the outstanding Revolving Credit Loans, Facility Fees, Risk Participation
Fees, interest and termination of the Commitments hereunder.



     SECTION 3.10 No Waiver; Reimbursement Limitation. Failure on the part of any Lender
to demand compensation, payment, or reimbursement of amounts under any of Sections 3.7, 3.8 and
3.9, above, with respect to any period shall not constitute a waiver of such Lender’s rights to
demand such compensation, payment, or reimbursement in such period or in any other period;
provided, however, that no Lender shall be entitled to compensation, payment, or
reimbursement of amounts under any of Sections 3.7, 3.8 and 3.9 for any amounts incurred or
accruing more than 270 days prior to the giving of notice to Holdings of any cost, reduction, Taxes
or other amount of the nature described in any of such Sections, and provided
further, however, that, if such cost, reduction, Tax or other amount is owing by a
Lender by reason of a an audit or assessment by governmental authority or change in law having
effect on a date earlier than the date on which such Lender receives notice thereof, then the
270-day period referred to above shall be extended to include such period of retroactive effect.



     SECTION 3.11 Lender’s Obligation to Mitigate; Replacement of Lenders.



     (a) If any Lender requests compensation under Section 3.7, 3.8 or 3.9, or if any Borrower is
required to pay any additional amount to any Lender or any governmental authority for the account
of any Lender pursuant to Section 3.7, 3.8 or 3.9, then such Lender shall use all commercially
reasonable efforts to mitigate or eliminate the amount of such compensation or additional amount,
including without limitation, by designating a different Lending Office for funding or booking its
Loans hereunder or by assigning its rights and obligations hereunder to another of its offices,
branches or affiliates; provided that no Lender shall be required to take any action
pursuant to this Section 3.11(a) unless, in the judgment of such Lender, such designation or
assignment or other action (i) would eliminate or reduce amounts payable pursuant to



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Section 3.7, 3.8 or 3.9, as the case may be, in the future, (ii) would not subject such Lender to any
unreimbursed cost or expense and (iii) would not otherwise be disadvantageous to such Lender. The
Borrowers shall pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.




     (b) If any Lender requests compensation under Section 3.7, 3.8 or 3.9, or if any Borrower is
required to pay any additional amount to any Lender or any governmental authority for the account
of any Lender pursuant to Section 3.7, 3.8 or 3.9, then the Borrowers may replace such Lender in
accordance with Section 15.15 hereto.



     SECTION 3.12 Optional Increase of Commitments. At any time prior to the date that is
one hundred eighty (180) days prior to the last day of the Commitment Period, if no Incipient
Default or Event of Default shall have occurred and be continuing (or would result after giving
effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the
Commitments (each such increase to be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders
in writing to increase their respective Commitments (proportionately based on their Ratable Shares
or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the
increase requested by the Borrowers. If, within fifteen (15) days following their receipt of the
Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in an
aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may
designate one or more financial institutions not theretofore a Lender to become a Lender (such
designation to be effective only with the prior written consent of the Administrative Agent and the
Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if
each such financial institution accepts a Commitment in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested
increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and
each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in
form reasonably satisfactory to the Administrative Agent, such existing Lender shall have a
Commitment as therein set forth or such other financial institution shall become a Lender with a
Commitment as therein set forth and shall have all the rights and obligations of a Lender with such
Commitment hereunder; provided:



     (a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial
institutions, if any, participating in such increase to the Administrative Agent, who shall
promptly notify the Lenders;



     (b) that the Borrowers shall have delivered to the Administrative Agent a copy of such
Commitment Acceptance;



     (c) that the amount of such increase, together with all other increases in the aggregate
amount of the Commitments pursuant to this Section 3.12 since the date of this Agreement, does not
exceed $75,000,000;



     (d) that, before and after giving effect to such increase, the representations and warranties
of the Borrowers contained in Article 10 of this Agreement shall be true and correct in



43









 




all material respects (except to the extent that any such representation or warranty expressly relates
to an earlier date, in which case it shall have been true and correct in all material respects as
of such date); and




     (e) that the Administrative Agent shall have received such evidence (including an opinion of
Borrowers’ counsel) as it may reasonably request to confirm the Borrowers’ due authorization of the
transactions contemplated by this Section 3.12 and the validity and enforceability of the
obligations of the Borrowers resulting therefrom.



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



     Upon any increase in the aggregate amount of the Commitments pursuant to this Section 3.12:




     (x) within five Banking Days, in the case of any Prime Rate Loans then outstanding, and
at the end of the then current Interest Period with respect thereto, in the case of any
LIBOR Loans then outstanding, the Borrowers shall prepay such Loans in their entirety and,
to the extent the Borrowers elect to do so and subject to the conditions specified in this
Agreement, the Borrowers shall reborrow Loans from the Lenders in proportion to their
respective Commitments after giving effect to such increase, until such time as all
outstanding Loans are held by the Lenders in such proportion; and




     (y) each existing Lender whose Commitment has not increased pursuant to this Section
3.12 (each, a “Non-increasing Lender”) shall be deemed, without further action by any party
hereto, to have sold to each Lender whose Commitment has been assumed or increased under
this Section 3.12 (each, an “Increased Commitment Lender”), and each Increased Commitment
Lender shall be deemed, without further action by any party hereto, to have purchased from
each Non-Increasing Lender, a participation (on the terms specified in this Agreement) in
each Letter of Credit in which such Non-Increasing Lender has acquired a participation in an
amount equal to such Increased Commitment Lender’s Ratable Share thereof, until such time as
all Letter of Credit exposures are held by the Lenders in proportion to their respective
Commitments after giving effect to such increase.



ARTICLE 4

PRO RATA TREATMENT




     SECTION 4.1 Pro Rata Treatment. Except as required by Section 3.7 or Section 12.4(b)
or as permitted under Section 3.9, each Revolving Credit Borrowing, each participation in a Letter
of Credit, each payment or prepayment of principal of any Revolving Credit Borrowing, each payment
of interest on the Revolving Credit Loans, each payment of the Facility Fees, each payment of Risk
Participation Fees, each reduction of the Commitments, each Rate Conversion or Rate Continuation of
Revolving Credit Loans comprising a Revolving Credit Borrowing shall



44









 




be allocated among the Lenders in accordance with each Lender’s Ratable Portion of the Total Commitment Amount (or if the
Commitments shall have expired or been terminated, in accordance with the respective principal
amounts of each Lender’s Revolving Credit Loans).




ARTICLE 5

LETTERS OF CREDIT




     SECTION 5.1 Letters of Credit.



     (a) Issuance. Subject to the terms and conditions set forth this Agreement, upon
written request from Holdings, on behalf of the Borrowers, a copy of which is delivered to the
Agent, the Letter of Credit Issuer will issue, for the account of any Borrower, on or at any time
after the commencement of the Commitment Period but prior to the earlier of (i) fifteen (15) days
prior to the last day of the Commitment Period or (ii) the date on which the Lenders’ Commitments
are terminated in full, whether pursuant to Section 3.2 or Article 12 hereof or otherwise, Letters
of Credit in such form as Holdings, on behalf of the Borrowers, and the Letter of Credit Issuer may
agree, but in no case having a final expiry date later than fifteen (15) Banking Days prior to last
day of the Commitment Period, and in all cases in compliance with all applicable provisions of Law;
provided, however, that, in no event shall (x) the aggregate Risk Participation Exposure exceed the
LC Sublimit or (y) the aggregate principal amount of all Revolving Credit Loans, plus the
aggregate Risk Participation Exposure, exceed the Total Commitment Amount. The Agent shall advise
the Lenders promptly following the issuance of a Letter of Credit or other event or condition which
affects the Lenders’ respective Risk Participation Exposures.



     (b) Reimbursement Obligations. Each Letter of Credit issued by the Letter of Credit
Issuer hereunder shall be issued pursuant to the Letter of Credit Issuer’s standard and customary
form of letter of credit application and/or Reimbursement Agreement (or equivalent agreement
otherwise named) then in use under which the Borrowers are the reimbursement obligors and shall
identify: (i) the respective dates of issuance and expiry of such Letter of Credit (which date of
expiry shall not be later than fifteen (15) days prior to the last day of the Commitment Period),
(ii) the amount of such Letter of Credit (which shall be a sum certain), (iii) the beneficiary and
account party of such Letter of Credit and (iv) the drafts and other documents (if any) necessary
to be presented to the Letter of Credit Issuer upon a drawing thereunder. To the extent that any
of the terms of the above-referenced Reimbursement Agreement conflict with the terms of this
Agreement, the terms of this Agreement shall control.



     (c) Payment of Letter of Credit Obligations. The Borrowers hereby agree to pay the
Letter of Credit Issuer, on demand, the amount of each drawing under any Letter of Credit issued by
the Letter of Credit Issuer pursuant to this Section, plus interest from the date of such drawing
until paid in full to the Letter of Credit Issuer by the Borrowers or pursuant to Section 5.2(b)
hereof, at an annual rate equal to the Prime Rate from time to time in effect.



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     SECTION 5.2 Letter of Credit Issuer Relationship with Lenders.



     (a) Risk Participation. The Letter of Credit Issuer hereby agrees that it will sell
simultaneously with the issuance of each Letter of Credit, and each other Lender hereby agrees that
it will buy simultaneously with the issuance of each Letter of Credit (subject to the following
sentence) a participation in any payment which the Letter of Credit Issuer makes for the account of
the Borrowers under any such Letter of Credit for which payment the Letter of Credit Issuer is not
otherwise immediately reimbursed by the Borrowers in an amount equal to such Lender’s Ratable
Portion. The aggregate principal amount of all outstanding Revolving Credit Loans of such Lender,
plus such Lender’s aggregate Risk Participation Exposure (after taking into effect such
Lender’s Ratable Portion of the risk participation created under this Section 5.2) shall not exceed
such Lender’s Commitment in effect from time to time. The sale of the risk participation by the
Letter of Credit Issuer and the purchase thereof by each Lender, respectively, shall occur
simultaneously with and shall be evidenced by each Letter of Credit.



     (b) Reimbursement of Letter of Credit Issuer. The Letter of Credit Issuer will notify
the Agent, who will promptly notify each other Lender, if the Letter of Credit Issuer makes any
payment under any Letter of Credit. Upon demand by the Agent each such other Lender shall pay to
the Agent that Lender’s Ratable Portion of each such payment made by the Letter of Credit Issuer.
Each such payment shall for all purposes hereunder be deemed to be a Prime Rate Loan (it being
understood that (i) each Lender’s obligation to make such payment is absolute and unconditional and
shall not be affected by any event or circumstance whatsoever, including the occurrence of any
Incipient Default hereunder or the failure of any condition precedent set forth in Article 7 to be
satisfied and (ii) each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever). In addition, upon demand by the Letter of Credit Issuer through the Agent,
each other Lender will pay an amount equal to such Lender’s Ratable Portion of all costs and
expenses not reimbursed by the Borrowers which have been incurred or made by the Letter of Credit
Issuer as the result of, or in connection with, any action including, but not limited to, legal
action which may be taken by Agent to obtain reimbursement for payments made by Agent under any
Letter of Credit, unless such costs and expenses are the result of the gross negligence or willful
misconduct of as the case may be, the Letter of Credit Issuer or the Agent.



     (c) Rights and Obligations of Letter of Credit Issuer. Neither the Letter of Credit
Issuer, nor any of its correspondents, shall be responsible, provided it has exercised reasonable
care, as to any document presented under a Letter of Credit, or any renewal or extension thereof,
which appears to be regular on its face and appears on its face to conform to the terms of the
Letter of Credit and to make reasonable reference thereto, for the validity or sufficiency of any
signature or endorsement, for delay in giving any notice or failure of any instrument to bear
adequate reference to the Letter of Credit, or to any renewal or extension thereof, or failure of
documents not clearly specified in the Letter of Credit to accompany any instrument at negotiation,
or for failure of any person to note the amount of any draft on the reverse of the Letter of Credit
or on any renewal or extension thereof. Any action, inaction or omission on the part of the Letter
of Credit Issuer or any of its correspondents, under or in connection with any Letter of Credit or
any renewal or extension thereof or the related instruments or documents, if in good faith and in
conformity with such Laws, regulations or customs as are applicable and the



46









 




terms of this Section 5.2, shall be binding upon the Borrowers and shall not place the Letter of Credit Issuer or any of
its correspondents under any liability to any Borrower, in the absence of negligence by the Letter of Credit Issuer or
its correspondents. The Letter of Credit Issuer’s rights, powers, privileges and immunities
specified in or arising under this Agreement are in addition to any heretofore or at any time
hereafter otherwise created or arising, whether by statute or rule of Law or contract.




     (d) Effect of Applicable Law or Custom. All Letters of Credit issued hereunder will,
except to the extent otherwise expressly provided, be governed by the International Standby
Practices, as adopted by the International Chamber of Commerce at the time of issuance of the
Letter of Credit.



     (e) Termination of Letter of Credit Commitment. In the event that (i) any restriction
is imposed on the Letter of Credit Issuer (including, without limitation, any legal lending or
acceptance limits imposed by the United States of America or any political subdivision thereof)
which in the reasonable judgment of the Letter of Credit Issuer would prevent the Letter of Credit
Issuer from issuing Letters of Credit or maintaining its commitment to issue Letters of Credit or
(ii) there shall have occurred, at any time during the term of this Agreement (A) any adverse
change or a development involving a prospective adverse change affecting the condition of any of
the Borrowers which would materially impair the ability of the Borrowers to meet their obligations
under this Article 5, (B) any outbreak of hostilities or other national or international crisis or
change in economic conditions if the effect of such outbreak, crisis or change would make the
creation of Letters of Credit or the discount or sale thereof impracticable, or (C) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or order of any court or
other governmental authority which would materially and adversely affect the ability of the
Borrowers to perform their obligations under this Agreement, then the Letter of Credit Issuer,
through the Agent, in the case of the occurrence of any event described above, shall give written
notice of the occurrence of such event to the Borrowers and the Lenders, whereupon the commitment
of the Letter of Credit Issuer to issue Letters of Credit shall terminate on the effective date of
such notice. The Borrowers shall forthwith pay to the Letter of Credit Issuer all obligations in
respect of Letters of Credit on the date of drawing of such Letter of Credit.



     SECTION 5.3 Resignation and Removal of Letter of Credit Issuer. The Letter of Credit
Issuer (or any successor) may at any time resign (so long as, at the same time, the institution
then serving as the Letter of Credit Issuer also resigns as Agent in the manner provided in Section
13.13, below, unless Holdings, on behalf of the Borrowers, has waived in writing the requirements
of this parenthetical) as such by giving thirty (30) days’ prior written notice to the Agent, the
Borrowers and each Lender; and the Majority Lenders may remove the Letter of Credit Issuer at any
time with or without cause by giving written notice to the Agent, the Letter of Credit Issuer and
the Borrowers. In any such case, the Majority Lenders may appoint a successor to the resigned or
removed Letter of Credit Issuer (the “Former LC Bank”), which successor shall (unless waived by
Holdings, on behalf of the Borrowers, in writing) also be successor Agent, provided that the
Majority Lenders obtain the Borrowers’ prior written consent to the successor (which consent shall
not be unreasonably withheld), by giving written notice to the Agent, the Borrowers, the Former LC
Bank and each Lender not participating in the



47









 




appointment; provided, however, that, if at the time of the proposed resignation or removal of a Letter of Credit Issuer, any Borrower is the subject of
an action referred to in Section 11.7 or any other Event of Default shall have occurred and be
continuing, the Borrowers’ consent shall not be required. In the absence of a timely appointment,
the Former LC Bank shall have the right (but not the duty) to make a temporary appointment of any
Lender (but only with that Lender’s consent) to act as its successor pending an appointment
pursuant to the immediately preceding sentence. In either case, the successor Letter of Credit
Issuer shall deliver its written acceptance of appointment to the Borrowers, the Agent, each Lender
and the Former LC Bank, whereupon (a) the Former LC Bank shall execute and deliver such assignments
and other writings as the successor Letter of Credit Issuer may reasonably require to facilitate
its being and acting as the Letter of Credit Issuer, (b) the successor Letter of Credit Issuer
shall in any event automatically acquire and assume all the rights and duties as those prescribed
for the Letter of Credit Issuer by this Article 5 and (c) the Former LC Bank shall be discharged
from its duties and obligations under this Agreement and the other Loan Documents. Notwithstanding
anything to the contrary contained in the foregoing, the Former LC Bank shall continue to enjoy all
of the rights and remedies (as against the Borrowers and the other Lenders) provided to the Letter
of Credit Issuer hereunder with respect to any and all Letters of Credit which are outstanding on
the effective date of its resignation or removal and which are not replaced by Letters of Credit
issued by its successor or otherwise canceled.




     SECTION 5.4 Defaulting Lender. Notwithstanding anything to the contrary in the
foregoing, if (a) there exists a default of any Lender’s obligations to fund under Section 5.2 or
(b) any Lender is at such time a Defaulting Lender or Impacted Lender hereunder, then (i) the Letter of Credit Issuer shall have no
obligation to issue or renew any Letter of Credit unless, prior to any such issuance or renewal the
Risk Participation Exposure of each Defaulting Lender or Impacted Lender is Cash Collateralized,
and (ii) with respect to any Letters of Credit then outstanding, within three (3) Banking Days
following request by the Letter of Credit Issuer to such Defaulting Lender or Impacted Lender and
Holdings, the Risk Participation Exposure of each Defaulting Lender or Impacted Lender shall be
Cash Collateralized. As used herein, the term “Cash Collateralize” shall mean the pledge and
deposit to Administrative Agent, for the benefit of the Letter of Credit Issuer and the Lenders, as
collateral for the Risk Participation Exposure of such Defaulting Lender or Impacted Lender of cash
or deposit account balances by a Defaulting Lender or Impacted Lender (and, upon such Defaulting
Lender’s or Impacted Lender’s failure to do so, a Borrower), pursuant to documentation reasonably
satisfactory to Administrative Agent and the Letter of Credit Issuer (which documents are hereby
consented to by the Lenders) in an amount equal to one hundred percent (100%) of such Risk
Participation Exposure. Such cash collateral shall be maintained in a blocked deposit account of a
Borrower at KeyBank over which the Administrative Agent has ‘control’, as defined in Article 9 of
the Uniform Commercial Code, as in effect in the State of Ohio.



ARTICLE 6

OPENING COVENANTS; CONDITIONS TO RESTATEMENT DATE




     SECTION 6.1 Opening Covenants. Prior to or concurrently with the execution and
delivery of this Agreement, Holdings shall, on behalf of the Borrowers, furnish to Agent originals
or copies for delivery to each Lender and the Letter of Credit Issuer of the following:



48









 





     (a) Borrower Certificates. A certificate executed by an authorized officer of
Holdings and each other Borrower and a secretary or assistant secretary of Holdings and each other
Borrower certifying, as of the Restatement Date, (a) the resolutions of the Board of Directors (or
other managing body, in the case of any entity other than a corporation) of such Borrower
authorizing the execution, performance and delivery of this Agreement, the Notes and all other Loan
Documents, (b) the names and signatures of the officers of such Borrower executing or attesting to
such documents, and (c) the absence of any Event of Default or Incipient Default;



     (b) Good Standing Certificates/Certificate of Incorporation. Certificates or articles
of incorporation (or formation or organization, in the case of an entity other than a corporation)
and certificates of good standing for Holdings and each other Borrower, in each case certified by
the office of the Secretary of State or other similar official of the state of incorporation (or
formation, in the case of any entity other than a corporation) of such entities, and certificates
of qualification to transact business as a foreign corporation or other entity in every other state
where such Borrower’s failure so to qualify could have a Material Adverse Effect;



     (c) Payment of Agent’s Legal Fees. Evidence of payment to the Agent, for its own
account, of the legal fees and expenses of the Agent.



     SECTION 6.2 Prior to Restatement Date. Prior to or concurrently with the Restatement
Date, Holdings shall, on behalf of the Borrowers, furnish to Agent originals or copies for delivery
to each Lender and the Letter of Credit Issuer of the following:



     (a) Loan Documents. The Agent shall have received counterparts hereof and of each
other Loan Document executed by all parties thereto, including, without limitation, Revolving
Credit Notes, in favor of each of the Lenders, in the principal amount of such Lender’s Commitment;



     (b) [Reserved];



     (c) Credit Request and Disbursement Direction Letter. To the extent, if any, that an
advance of Loans on such date is to be requested, a Notice of Borrowing and a letter from Holdings,
on behalf of the Borrowers, directing the Agent to disburse the proceeds of the initial Revolving
Credit Borrowing;



     (d) Legal Opinion. A favorable opinion of counsel for the Borrowers, all in form and
substance reasonably acceptable to the Agent;



     (e) Borrower Certificate. A certificate executed by an authorized officer of each
Borrower certifying the absence of any Event of Default or Incipient Default;



     (f) Letter of Credit Reimbursement Agreement. A Letter of Credit Reimbursement
Agreement duly executed by the applicable Borrower with respect to any Letter of Credit issued on
the Restatement Date;



49









 





     (g) Payment of Fees. The Borrowers shall have paid (i) to the Agent for the ratable
benefit of the Lenders the upfront fee provided for in Section 3.4(e) and (ii) to the Agent any
other fees and expenses owing to the Agent pursuant to the Fee Letter.



     (h) Other Matters. Such other documents, certificates and other matters as the Agent
may reasonably request of Holdings and any of the other Borrowers.



ARTICLE 7

CONDITIONS TO ALL CREDIT EVENTS




     On the date of each Credit Event, such Credit Event shall constitute a representation and
warranty by the Borrowers that the following are and will be true as of such date and after giving
effect to such Credit Event, and each of the following shall be true as a condition precedent
thereto:



     SECTION 7.1 Representation Bringdown. The representations and warranties contained
in Article 10 are true and correct in all respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date;



     SECTION 7.2 Compliance with Agreement. The Borrowers shall be in compliance with all
other terms and provisions set forth herein and in each other Loan Document on its part to be
observed or performed, and at the time of and immediately after such Credit Event, no Event of
Default or Incipient Default shall have occurred and be continuing; and



     SECTION 7.3 No Material Adverse Change. There has been no event since the date
hereof which would or might reasonably be expected to have a Material Adverse Effect.



ARTICLE 8

AFFIRMATIVE COVENANTS




     From and after the Restatement Date and for so long thereafter as any of the Obligations
remain unpaid and outstanding, or any Lender shall have any Commitment outstanding, or any Loans
shall remain unpaid, the Borrowers shall perform and observe, and shall cause all of the other
Lincoln Parties to perform and observe, all of the following covenants:



     SECTION 8.1 Financial Statements.



     (a) Quarterly Financial Statements. Holdings shall furnish to each Lender promptly,
and in any case within forty-five (45) days after the end of each of the first three (3) Fiscal
Quarters of each of its Fiscal Years, unaudited Consolidated balance sheet of Holdings as at the
end of that period and the related unaudited Consolidated statements of income and cash flows, and
setting forth, in the case of such unaudited Consolidated statements of income and of cash flows,
comparative figures for the related periods in the prior Fiscal Year, all prepared in



50









 




accordance with GAAP and otherwise in form and detail satisfactory to each Lender and certified by a financial
officer of Holdings.




     (b) Annual Financial Statements. Holdings shall furnish to each Lender as soon as
available and in any event within 90 days after the close of each Fiscal Year of Holdings, the
Consolidated balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Year and
the related Consolidated statements of income, of stockholders’ equity and of cash flows for such
Fiscal Year, in each case setting forth comparative figures for the preceding Fiscal Year, all in
reasonable detail and accompanied by the opinion with respect to such Consolidated financial statements of independent public accountants of recognized national standing
selected by Holdings, which opinion shall be unqualified and shall (A) state that such accountants
audited such Consolidated financial statements in accordance with generally accepted auditing
standards, that such accountants believe that such audit provides a reasonable basis for their
opinion, and that in their opinion such Consolidated financial statements present fairly, in all
material respects, the Consolidated financial position of Holdings and its Subsidiaries as at the
end of such Fiscal Year and the Consolidated results of their operations and cash flows for such
Fiscal Year in conformity with generally accepted accounting principles, or (B) contain such
statements as are customarily included in unqualified reports of independent accountants in
conformity with the recommendations and requirements of the American Institute of Certified Public
Accountants (or any successor organization).



     (c) Officer’s Certificates. Holdings shall furnish to each Lender the following:




     (i) concurrently with the financial statements delivered in connection with clauses (a)
and (b) above, a certificate of a responsible financial officer of Holdings, certifying that
(A) to his or her knowledge and belief, those financial statements fairly present in all
material respects the financial condition and results of operations of Holdings and its
Subsidiaries (subject, in the case of interim financial statements, to routine year-end
audit adjustments) and (B) no Incipient Default or Event of Default then exists or if any
does, a brief description thereof and of Holdings’ intentions in respect thereof, and




     (ii) within forty-five (45) days after the end of each of the first three (3) Fiscal
Quarters of any Fiscal Year and within ninety (90) days after the end of any Fiscal Year, a
certificate of a responsible financial officer of Holdings, in the form of Exhibit E
hereto, setting forth the calculations necessary to determine whether or not the Borrowers
are in compliance with Sections 9.7 and 9.8 hereof.



     (d) SEC Reports and Registration Statements. Promptly after transmission thereof or
other filing with the SEC, Holdings shall furnish to each Lender copies of all registration
statements (other than the exhibits thereto and any registration statement on Form S-8 or its
equivalent) and all annual, quarterly or current reports that Holdings or any of its Subsidiaries
files with the SEC on Form 10-K, 10-Q or 8-K (or any successor forms).



     (e) Annual and Quarterly Reports, Proxy Statements and other Reports Delivered to
Stockholders Generally. Promptly after transmission thereof to its stockholders, Holdings
shall



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furnish to each Lender copies of all annual, quarterly and other reports and all proxy
statements that Holdings furnishes to its stockholders generally.




     (f) Other Information. With reasonable promptness, Holdings shall furnish to each
Lender such other information or documents (financial or otherwise) relating to Holdings or any of
its Subsidiaries as such Lender may reasonably request from time to time.



     (g) Fiscal Year. Holdings shall not change its Fiscal Year and shall not permit any
of its Subsidiaries to change its respective fiscal year unless (i) Holdings has delivered to the
Agent written notice thereof at least thirty (30) days prior to the effectiveness of such change,
and (ii) the Borrowers have executed and delivered to the Agent and the Lenders such amendments to
this Agreement and other Loan Documents as Agent or the Majority Lenders may reasonably require to
cause the provisions of this Agreement and the other Loan Documents immediately after such change
to have the same effect as that intended by the provisions of this Agreement and the other Loan
Documents immediately prior to such change.



     SECTION 8.2 Notice.



     (a) Notice of Default; Other Events. Holdings shall give each Lender prompt written
notice as soon as possible, and in any event within five (5) Banking Days after any responsible
officer of any Lincoln Party obtains knowledge thereof, of (i) the occurrence of any Incipient
Default or Event of Default or of any development which in such officer’s reasonable belief would
or might reasonably be expected to result in a Material Adverse Effect, setting forth the details
of such Incipient Default or such development and the action that such Lincoln Party has taken or
proposes to take with respect thereto or (ii) any litigation or governmental or regulatory
proceeding against any Lincoln Party which is likely to have a Material Adverse Effect.



     (b) Notice of ERISA Matters. Promptly, and in any event within 10 days after receipt
from any ERISA Regulator of notice of, or a responsible officer of any Borrower otherwise becoming
aware of, any of the following, Holdings shall give the Agent written notice setting forth the
nature thereof and the action, if any, that Holdings or an ERISA Affiliate proposes to take with
respect thereto:



     (i) the occurrence of a Default under ERISA;



     (ii) with respect to any Plan, any Reportable Event;




(iii) the taking by the Pension Benefit Guaranty Corporation of steps to institute, or the
threatening by the Pension Benefit Guaranty Corporation of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by Holdings or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by the Pension Benefit Guaranty
Corporation with respect to such Multiemployer Plan (including a copy of any notice
thereof); or



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(iv) any event, transaction or condition that could result in the incurrence of any
liability by Holdings or any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit plans (as defined
in Section 3 of ERISA), or in the imposition of any Lien on any of the rights, properties or
assets of Holdings or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty
or excise tax provisions, if such liability or Lien, taken together with any other such
liabilities or Liens then existing, would reasonably be expected to have a Material Adverse
Effect.



     (c) Environmental Reporting. Holdings shall give each Lender prompt, and in any event
within ten (10) days of the date any Lincoln Party receives or transmits, as the case may be,
copies of all material communications with any government or governmental agency relating to
Environmental Laws.



     SECTION 8.3 Insurance. Each Lincoln Party shall keep itself and all of its insurable
properties insured at all times to such extent, by such insurers, and against such hazards and
liabilities as is customarily carried by prudent businesses of like size and enterprise; and
promptly upon the Agent’s written request upon and during the continuance of an Event of Default,
Holdings shall furnish to the Agent such information about any such insurance as the Agent may from
time to time reasonably request, which information shall be prepared in form and detail
satisfactory to the Agent and certified by an appropriate officer of Holdings.



     SECTION 8.4 Money Obligations. Each Lincoln Party shall pay, in full (a) all taxes,
assessments and governmental charges and levies (except only those so long as and to the extent
that the same shall be contested in good faith by appropriate and timely proceedings) for which
such Lincoln Party may be or become liable, or to which any or all of the properties of such
Lincoln Party may be or become subject, prior to the date on which the failure to make such payment
would reasonably be expected to have a Material Adverse Effect, and (b) all of its other
obligations calling for the payment of money (except only those so long as and to the extent that
the same shall be contested in good faith and except further trade accounts payable consistent with
such Lincoln Party’s past practice) before such payment becomes overdue where the failure to make
such payment would reasonably be expected to have a Material Adverse Effect.



     SECTION 8.5 Records.



     (a) Each Lincoln Party shall at all times maintain true and complete records and books of
account and, without limiting the generality of the foregoing, maintain appropriate reserves for
possible losses and liabilities, all in accordance with GAAP in all material respects.



     (b) If no Incipient Default or Event of Default then exists, the Borrowers shall permit the
Agent, at the expense of the Lenders, and any Lender, at the expense of such Lender, and upon
reasonable prior notice to Holdings, to visit the principal executive office of each Borrower, to
discuss the affairs, finances and accounts of the Borrowers and the other Subsidiaries with each
Borrower’s officers and, with the consent of Holdings (which consent will not be unreasonably
withheld), to visit the other offices and properties of the Borrowers and the Subsidiaries and to make copies and extracts from the books and records of such Borrowers and
Subsidiaries, all at such reasonable times and as often as may be reasonably requested; and



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     (c) If any Incipient Default or Event of Default then exists, the Borrowers shall permit the
Agent and any Lender, at the expense of the Borrowers, to visit and inspect any of the offices or
properties of each Borrower or any other Subsidiaries, to examine all their respective books of
account, records, reports and other papers, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective officers and independent
public accountants (and by this provision each Borrower hereby authorizes said accountants to
discuss the affairs, finances and accounts of such Borrower and its Subsidiaries), all at such
times and as often as may be determined by the Agent or such Lender.



     SECTION 8.6 Franchises. Each Lincoln Party shall preserve and maintain at all times
its corporate existence, rights and franchises, except where the failure to maintain any such
corporate right or franchise would reasonably not be expected to have a Material Adverse Effect;
provided, however, that this Section 8.6 shall not prevent any merger or
consolidation permitted by Section 9.3 hereof.



     SECTION 8.7 Certain Subsidiaries to Join as Borrower. In the event that at any time
after the Restatement Date any Borrower directly or indirectly has any Significant Subsidiary that
is not a Borrower, Holdings shall notify the Agent in writing of such event, identifying the
Significant Subsidiary in question and referring specifically to the rights of the Agent and the
Lenders under this Section 8.7. Holdings shall, within 30 days following request therefor from the
Agent, cause such Significant Subsidiary to deliver to the Agent (i) a joinder to this Agreement
and such other Loan Documents as the Agent reasonably requires to cause such Significant Subsidiary
to be a Borrower hereunder and (ii) if such Significant Subsidiary is a corporation, resolutions of
the Board of Directors (or other managing body, in the case of any entity other than a corporation)
of such Significant Subsidiary, certified by the Secretary or an Assistant Secretary of such
Significant Subsidiary as duly adopted and in full force and effect, authorizing the execution and
delivery thereof, or if such Significant Subsidiary is not a corporation, such other evidence of
the authority of such Significant Subsidiary to execute such joinder and other Loan Documents, as
the Agent may reasonably request.



     SECTION 8.8 Most Favored Covenant Status. If any one or more of the Borrowers at any
time after the Restatement Date, issues or guarantees any unsecured Indebtedness for money borrowed
or represented by bonds, notes, debentures or similar securities in an aggregate amount exceeding
$50,000,000, to any lender or group of lenders acting in concert with one another, or one or more
institutional investors, pursuant to a loan agreement, credit agreement, note purchase agreement,
indenture, guaranty or other similar instrument, which agreement, indenture, guaranty or
instrument, includes affirmative or negative business or financial covenants (or any events of
default or other type of restriction which would have the practical effect of any affirmative or
negative business or financial covenant, including, without limitation, any “put” or mandatory
prepayment of such Indebtedness upon the occurrence of a “change of control”) which are applicable
to such Borrower or Borrowers, other than those set forth herein or in any of the other Loan
Documents, Holdings shall promptly so notify the Agent and the Lenders and, if the Agent shall, at
the instruction of the Majority Lenders, so request by written notice to Holdings, the Borrowers,
the Agent and the Lenders shall promptly amend this Agreement to incorporate some or all of such
provisions, in the discretion of the Majority Lenders, into this



54









 




Agreement and, to the extent necessary and reasonably desirable to the Majority Lenders, into any of the other Loan Documents.




     SECTION 8.9 Compliance With Laws. Each Lincoln Party shall comply in all respects
with its Articles of Incorporation or Certificate of Incorporation(or equivalent organization
documentation), as the case may be, and Regulations or By-laws, as the case may be (or equivalent
organization documentation), and all applicable occupational safety and health Laws, federal and
state securities Laws, product safety Laws, Environmental Laws and every other Law, treaty, rule,
regulation, determination of an arbitrator, and every lawful governmental order or determination if
non-compliance with such Law or order would have or might reasonably be expected to have a Material
Adverse Effect; provided, however, that this Section 8.9 shall not apply to any noncompliance if
and to the extent that the same is being contested in good faith by timely and appropriate
proceedings which are effective to stay enforcement thereof and against which appropriate reserves
have been established.



     SECTION 8.10 Properties. Each Lincoln Party shall maintain all assets in any
material respect necessary to its continuing operations in good working order and condition,
ordinary wear and tear excepted.



     SECTION 8.11 Use of Proceeds. The Borrowers shall use the proceeds of the Loans and
the Letters of Credit only for the purposes specified in Section 2.2.



     SECTION 8.12 Anti-Terrorism Laws. The Borrowers and their respective Affiliates and
agents shall not (i) conduct any business or engage in any transaction or dealing with any Blocked
Person, including the making or receiving of any contribution of funds, goods or services to or for
the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating
to, any property or interests in property blocked pursuant to the Executive Order No. 13224; or
(iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Executive
Order No. 13224, the USA Patriot Act or any other Anti-Terrorism Law. The Borrowers shall deliver
to the Lenders and the Letter of Credit Issuer any certification or other evidence requested from
time to time by any Lender or the Letter of Credit Issuer in its sole reasonable discretion,
confirming the Borrowers’ compliance with this Section 8.12.



ARTICLE 9

NEGATIVE COVENANTS




     From and after the Restatement Date and for so long thereafter as any of the Obligations
remain unpaid and outstanding, or any Lender shall have any Commitment outstanding, or any Loans
shall remain unpaid, the Borrowers shall perform and observe, and shall cause all of the other
Lincoln Parties to perform and observe, all of the following covenants:



     SECTION 9.1 ERISA Compliance. The Borrowers shall not permit (i) any Plan to fail to
satisfy the minimum funding standards of ERISA or the Code, for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought or granted



55









 




under section 412 of the Code, (ii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of
section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, to
exceed $200,000,000, (iii) Holdings or any ERISA Affiliate to incur any liability pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), or (iv) Holdings or any Subsidiary to establish or amend
any employee welfare benefit plan (as defined in Section 3 of ERISA) that provides post-employment
welfare benefits in a manner that would increase the liability of Holdings or any Subsidiary
thereunder, unless any such event or events described in clauses (i) through (iv), above, either
individually or together with any other such event or events, would reasonably not be expected to
have a Material Adverse Effect.




     SECTION 9.2 Investments. No Lincoln Party shall make or have outstanding any
Investment, other than:



     (a) Investments by a Lincoln Party in and to its Subsidiaries on the date hereof, and after
the date hereof, (i) any Investment in assets that is a Permitted Acquisition and (ii) any
Investment in any Person which, after giving effect to such Investment, becomes a Subsidiary of
such Lincoln Party under a Permitted Acquisition, so long as such Lincoln Party causes such
Subsidiary to comply with the requirements of Section 8.7, above;



     (b) Investments of the Lincoln Parties existing as of the Restatement Date and described on
Schedule 9.2 hereto;



     (c) Investments in Cash Equivalents;



     (d) Investments in mutual funds registered under the Investment Company Act of 1940, as
amended, which invest only in either money market securities or United States Governmental
Securities, in either case, maturing within three years from the date of acquisition thereof by
such mutual fund;



     (e) Subject to the limitations provided for under Section 9.3(c) hereof, Investments in
Special Purpose Companies incidental to the consummation of Qualifying Securitization Transactions;



     (f) Investments in property to be used in the ordinary course of business of the Borrowers and
their Subsidiaries;



     (g) Investments in current assets arising from the sale of goods and services in the ordinary
course of business of the Borrowers and their Subsidiaries; and



     (h) Investments of the Lincoln Parties not described in the foregoing clauses (a) through (g);
provided that the aggregate amount of all such Investments, on a Consolidated basis,
outstanding under this clause (h) shall not at any time exceed an amount equal to fifteen percent
(15%) of Consolidated Net Worth at such time.



     SECTION 9.3 Mergers; Acquisitions; Bulk Transfers. No Lincoln Party shall:



56









 





     (a) be a party to any consolidation, control share acquisition, majority share acquisition or
other business combination or merger, other than:



     (i) a Permitted Holdings Merger,



     (ii) a Permitted Acquisition, or



     (iii) a merger of a Subsidiary into another Subsidiary, provided that (A) if either
such Subsidiary is a Borrower:




(1) Holdings shall deliver to the Agent written notice thereof at least five (5)
Banking Days prior to the effective date of such merger,




(2) such merging Subsidiaries (and any other Borrowers requested by the Agent or the
Lenders) shall execute and deliver to the Agent and the Lenders such assumptions,
confirmations, and other Loan Documents as the Agent or the Lenders may require to
protect their interests under this Agreement and the other Loan Documents, and




(3) after giving effect to such merger, no Event of Default or Incipient Default
shall exist,




and (B) as to all other mergers of a Subsidiary into another Subsidiary, Holdings shall
advise the Agent in writing of such merger contemporaneously with its effectiveness, or



     (b) purchase all or a substantial part of the outstanding securities or assets of any
corporation or other business enterprise, except Permitted Acquisitions, or



     (c) other than Holdings, issue any of its own stock (or any options or warrants to purchase
stock or other securities exchangeable for or convertible into such stock) to any Person other than
another Lincoln Party, except (i) to qualify directors, in the minimum amount required for such
qualification, (ii) stock issued, in the minimum amount required by law, to comply with laws
requiring multiple shareholders, or (iii) in connection with an issuance of such stock whereby such
Lincoln Party maintains its same direct or indirect proportionate interest in such Subsidiary,
unless




(A) such issuance is for cash consideration or Cash Equivalents and after giving effect to
such issuance of such stock, such Lincoln Party shall continue to be a Subsidiary of
Holdings;




(B) in the opinion of a responsible officer of Holdings (and the Board of Directors (or
other managing body, in the case of any entity other than a corporation) of such Lincoln
Party to the extent approval is of the Board of Directors (or other managing body, in the
case of any entity other than a corporation) is required), that the sale is for fair value
and in the best interests of such Lincoln Party;



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(C) said stock issued to a Person on terms reasonably deemed by the responsible officer of
Holdings (or the Board of Directors (or other managing body, in the case of any entity other
than a corporation) of such Lincoln Party to the extent approval of the Board of Directors (or other managing body,
in the case of any entity other than a corporation) is required) to be adequate and
satisfactory;




(D) for the purposes of measuring compliance with Section 9.3(d), below, such issuance shall
be treated as a disposition of assets by such Lincoln Party proportionately equal to the
increase in the minority interests in the stock and surplus of such Lincoln Party; and




(E) no Event of Default or Incipient Default then exists or would exist after giving effect
to such issuance.



     (d) lease, sell or otherwise transfer any material assets (other than such personal property,
if any, as may have become obsolete or no longer useful in the continuance of its present
business) except (i) in the normal course of its present business, (ii) the sale or other transfer
of Trade Receivables to a Special Purpose Company pursuant to one or more Qualifying
Securitization Transactions, to the extent that the aggregate amount outstanding under all
financing facilities relating to such Qualifying Securitization Transactions shall not exceed
$75,000,000 at any time of determination, and (iii) any lease, sale or transfer by a Lincoln Party
to another Lincoln Party, which, as to leases, sales and transfers by Borrowers to Lincoln Parties
that are not Borrowers, do not exceed in the aggregate $40,000,000 on a Consolidated basis in any
Fiscal Year; provided that the foregoing restrictions shall not apply to the sale of
assets for cash to a Person other than an Affiliate, if all of the following conditions are met:




(A) the aggregate book value of such assets, together with all other assets of the Lincoln
Parties previously disposed of (other than pursuant to clauses (i), (ii) and (iii) above)
during any Fiscal Year on a Consolidated basis does not exceed fifteen percent (15%) of
Consolidated Net Worth as of the end of the Fiscal Year then most recently ended;




(B) in the opinion of a responsible officer and the Board of Directors (or other managing
body, in the case of any entity other than a corporation) of such Lincoln Party (to the
extent approval of the Board of Directors (or other managing body, in the case of any entity
other than a corporation) is required), the sale is for fair value and in the best interests
of such Lincoln Party; and




(C) no Event of Default or Incipient Default then exists or would exist after giving effect
to such sale.



     SECTION 9.4 Liens. No Lincoln Party shall (a) acquire any property subject to any
inventory consignment, lease, land contract or other title retention contract (this section shall
not apply to true leases, consignments, tolling or other possessory agreements in respect of the
property of others whereby such Lincoln Party does not have legal or beneficial title to such
property and which, pursuant to GAAP, are not required to be capitalized), (b) sell or otherwise



58









 




transfer any Trade Receivables, whether with or without recourse, or (c) suffer or permit any
property now owned or hereafter acquired by it to be or become encumbered by any mortgage, security
interest, financing statement or Lien of any kind or nature; provided, that this Section
shall not apply to:





(i) any lien for a tax, assessment or governmental charge or levy which is not yet due and
payable or which is being contested in good faith and as to which such Lincoln Party shall
have made appropriate reserves,




(ii) any lien securing only its workers’ compensation, unemployment insurance and similar
obligations,




(iii) any mechanics, carrier’s or similar common law or statutory lien incurred in the
normal course of business,




(iv) any transfer of a check or other medium of payment for deposit or collection through
normal banking channels or any similar transaction in the normal course of business,




(v) Permitted Purchase Money Security Interests,




(vi) any mortgage, security interest or lien (other than Permitted Purchase Money Security
Interests) securing only indebtedness incurred to any Lender, so long as the aggregate
unpaid principal balance of all such Indebtedness secured by all such mortgages, security
interests and liens, on a Consolidated basis, does not at any time exceed an amount equal to
five percent (5%) of Consolidated Net Worth at such time,




(vii) any financing statement perfecting only a security interest permitted by this Section,




(viii) easements, restrictions, minor title irregularities and similar matters having no
adverse effect as a practical matter on the ownership or use of any Borrower’s or any
Subsidiary’s real property,




(ix) liens on assets acquired pursuant to a Permitted Acquisition or a Permitted Holdings
Merger,




(x) any attachment or judgment Lien, but only so long as (A) the judgment it secures shall,
within thirty (30) days after the entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall have been discharged within thirty (30) days after the
expiration of any such stay and (B) the judgment it secures, when taken together with all
other judgments related to attachment and judgment Liens under this clause (x), does not
exceed $30,000,000 in the aggregate,




(xi) Liens incurred in the ordinary course of business to secure (A) the non-delinquent
performance of bids, trade contracts, leases (other than Capital Leases) and statutory
obligations, (B) contingent obligations on surety bonds and appeal bonds, and (C) other



59









 






similar non-delinquent obligations, in each case, not incurred or made in connection with
the obtaining of advances or credit, the payment of the deferred purchase price of property
or the incurrence of other Indebtedness, provided that such Liens, taken as a whole,
would not, even if enforced, have a Material Adverse Effect,




(xii) leases or subleases granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances in the ordinary course of business, in each case
incidental to, and not interfering in any material respect with, the ordinary conduct of the
business of such Lincoln Party, and which do not in the aggregate materially impair the use
of such property in the operation of the business of such Lincoln Party or the value of such
property for the purposes of such business,




(xiii) any other liens existing on the date hereof which are identified on Schedule 9.4
hereto,




(xiv) any extension, renewal or refunding of any Lien permitted by the preceding clauses
(vii), (ix), (xii) and (xiii) of this Section 9.4 in respect of the same property
theretofore subject to such Lien in connection with the extension, renewal or refunding of
the Indebtedness secured thereby; provided that (A) such extension, renewal or
refunding shall be without increase in the principal amount remaining unpaid as of the date
of such extension, renewal or refunding, (B) such Lien shall attach solely to the same such
property, (C) the principal amount remaining unpaid as of the date of such extension,
renewal or refunding is less than or equal to the fair market value of the property
(determined in good faith by the Board or Directors of Holdings) to which such Lien is
attached, (D) at the time of such extension, renewal or refunding and after giving effect
thereto, no Event of Default would exist, or




(xv) liens (other than liens on Trade Receivables unless in connection with a Qualifying
Securitization Transactions complying with the limitations contained in Section 9.3(d)(ii),
above) not otherwise permitted in the foregoing clauses (i) through (xiv), above, securing
Indebtedness that does not exceed at any time an amount equal to ten percent (10%) of
Consolidated Net Worth at such time.



     SECTION 9.5 Transactions with Affiliates. No Lincoln Party shall enter into any
transaction or series of transactions with any Affiliate other than in the ordinary course of
business of and pursuant to the reasonable requirements of such Lincoln Party’s business and upon
fair and reasonable terms no less favorable to such Lincoln Party than would obtain in a comparable
arm’s-length transaction with a person other than an Affiliate.



     SECTION 9.6 Change in Nature of Business, Name. No Lincoln Party shall make any
material change in the nature of its business as carried on at the date hereof; and no Borrower
make any change in its corporate or other entity name, except upon sixty (60) days’ prior written
notice to the Agent.



     SECTION 9.7 Fixed Charges Coverage. Holdings shall not permit the Fixed Charges
Coverage Ratio as of the end of any Fiscal Quarter to be less than 1.75 to 1.00.



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     SECTION 9.8 Total Leverage Ratio. Holdings shall not permit the Total Leverage Ratio
as of the end of any Fiscal Quarter to be greater than 3.00 to 1.



     SECTION 9.9 Distributions. Holdings shall not declare or pay any dividend or other
Distribution in cash, property or obligations (other than in shares of capital stock of Holdings or
in options, warrants or other rights to acquire any such capital stock or in other securities
convertible into any such capital stock) on any shares of capital stock of Holdings of any class;
and Holdings shall not purchase, redeem or otherwise acquire for any consideration any shares of
capital stock Holdings of any class or any option, warrant or other right to acquire any such
capital stock, unless, as to any of the foregoing, no Event of Default or Incipient Default then
exists or would exist after giving effect thereto.



ARTICLE 10

REPRESENTATIONS AND WARRANTIES




     Each Borrower jointly and severally represents and warrants to the Agent, the Letter of Credit
Issuer and each of the Lenders as follows:



     SECTION 10.1 Existence; Subsidiaries.



     (a) Each Borrower is a corporation duly organized and validly existing and in good standing
under the Laws of the state of its incorporation or organization and is duly qualified and
authorized to do business wherever it owns any real estate or personal property or transacts any
substantial business (except in jurisdictions in which failure to so qualify, singly or in the
aggregate, would not have a Material Adverse Effect).



     (b) Except as set forth on Schedule 10.1 hereto, no Lincoln Party has any Subsidiaries.



     SECTION 10.2 Power, Authorization and Consent; Enforceability. The execution,
delivery and performance of this Agreement and the Notes by a Borrower, and of all Loan Documents
to which any of them is party (a) are within Holdings’ or such other Borrower’s legal power and
authority, (b) have been duly authorized by all necessary or proper action of Holdings or such
other Borrower, (c) do not require the consent or approval of any governmental body, agency,
authority or any other Person which has not been obtained and (d) will not violate (i) any
provision of Law applicable to Holdings or such other Borrower, (ii) any provision of Holdings’ or
such other Borrower’s, as the case may be, certificate or articles of incorporation, by-laws or
regulations, or operating agreement, or (iii) any material agreement or material indenture by which
Holdings or such other Borrower or the property of Holdings or such other Borrower is bound, except
where such violation specified in this clause (iii) would not have a Material Adverse Effect, or
(e) will not result in the creation or imposition of any lien or encumbrance on any property or
assets of Holdings or such other Borrower except as provided herein.



     This Agreement has been duly executed and delivered by each Borrower and constitutes, and each
other Loan Document to which such Borrower is to be a party, when executed and delivered by such
Borrower, will constitute, a legal, valid and binding obligation of such



61









 




Borrower in each case enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.




     SECTION 10.3 Litigation; Proceedings. Except as set forth on Schedule 10.3 hereto,
no action, suit, investigation or proceeding is now pending or, to the knowledge of Holdings,
threatened, against Holdings or any Subsidiary, at Law, in equity or otherwise, or with respect to
this Agreement or any other Loan Document, before any court, board, commission, agency or
instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof, or before any arbitrator or panel of arbitrators which would or
might reasonably be expected to have a Material Adverse Effect.



     SECTION 10.4 ERISA Compliance.



     (a) Holdings and each ERISA Affiliate have operated and administered each Plan in compliance
with all applicable Laws except for such instances of noncompliance as have not resulted in and
could not reasonably be expected to result in a Material Adverse Effect. Neither Holdings nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of
ERISA), and no event, transaction or condition has occurred or exists that would reasonably be
expected to result in the incurrence of any such liability by Holdings or any ERISA Affiliate, or
in the imposition of any Lien on any of the rights, properties or assets of Holdings or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such liabilities or Liens as
would not be individually or in the aggregate material in relation to the business, operations,
affairs, financial condition, assets, or properties of Holdings and its Subsidiaries taken as a
whole.



     (b) On the Restatement Date, the present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of January 1, 2009 on the basis of the
actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan allocable to such
benefit liabilities in the case of any single Plan or in the aggregate for all Plans, except as set
forth in Holdings’ Form 10-K Annual Report for the Fiscal Year ending December 31, 2008. The term
“benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current
value” and “present value” have the meanings specified in Section 3 of ERISA.



     (c) Holdings and its ERISA Affiliates have not incurred withdrawal liabilities (and are not
subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are material in relation to the business,
operations, affairs, financial condition, assets, or properties of Holdings and its Subsidiaries
taken as a whole. Neither Holdings nor any of its ERISA Affiliates is a participating employer of,
or makes contributions to, a Multiple Employer Plan.



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     (d) The expected post-retirement benefit obligation (determined as of the last day of
Holdings’ most recently ended Fiscal Year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of Holdings and its Subsidiaries is not material in relation to the
business, operations, affairs, financial condition, assets, or properties of Holdings and its
Subsidiaries taken as a whole.



     (e) The execution and delivery of this Agreement and the occurrence of any Credit Event
hereunder will not involve any transaction that is subject to the prohibitions of section 406 of
ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of
the Code.



     SECTION 10.5 Financial Condition. The Consolidated audited financial statements of
Holdings and its Subsidiaries for the Fiscal Year ending December 31, 2008, previously delivered to
the Lenders, are true and complete (including, without limiting the generality of the foregoing, a
disclosure of all material contingent liabilities), have been prepared in accordance with GAAP
applied on a basis consistent with those used during their next preceding Fiscal Year (except as
noted therein) and fairly present their then financial condition and operations for the Fiscal Year
then ending. Since December 31, 2008, there has been no material adverse change in the financial
condition, properties or business of Holdings and its Subsidiaries, taken as a whole.



     SECTION 10.6 Solvency. Each Borrower has received consideration which is the
reasonable equivalent value of the obligations and liabilities that such Borrower has incurred to
the Lenders. No Borrower is insolvent as defined by any applicable state or federal Law, nor will
any Borrower be rendered insolvent by the execution and delivery of this Agreement or any Note or
Guaranty to the Lenders. No Borrower is engaged or about to engage in any business or transaction
for which the assets retained by it shall be an unreasonably small capital, taking into
consideration the obligations to the Lenders incurred hereunder. No Borrower intends to, nor does
it believe that it will, incur debts beyond its ability to pay them as they mature.



     SECTION 10.7 Default. No Event of Default or Incipient Default exists hereunder, nor
will any begin to exist immediately after the execution and delivery hereof.



     SECTION 10.8 Lawful Operations. The operations of Holdings, the operations of each
of the Subsidiaries and all Borrower Property are in full compliance with all requirements imposed
by Law or regulation, whether federal, state or local including (without limitation) all
Environmental Laws, occupational safety and health Laws and zoning ordinances except where the
noncompliance with any such Laws could not be reasonably expected to result in a Material Adverse
Effect; provided, however, that this Section 10.8 shall not apply to any
noncompliance if and to the extent that the same is being contested in good faith by timely and
appropriate proceedings which are effective to stay enforcement thereof and against which
appropriate reserves have been established.



     SECTION 10.9 Investment Company Act Status. No Borrower is an “investment company”
or a company “controlled” by an “investment company” or an “affiliated person” of,




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or “promoter” or “principal underwriter” for, an “investment company”, as such terms are
defined in the Investment Company Act of 1940.




     SECTION 10.10 Regulation G/Regulation U/Regulation X Compliance. No Borrower is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying “margin stock”, (as defined by Regulation U of the Board of
Governors of the Federal Reserve System of the United States (as amended from time to time)) and
all official rulings and interpretations thereunder or thereof and at no time shall more than 25%
of the value of the assets of Holdings and its Consolidated Subsidiaries that are subject to any
“arrangement” (as such term is used in section 221.2(g) of Regulation U) be represented by “margin
stock”. No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or to extend credit to others for
the purpose of purchasing “margin stock” or to carry or to extend credit to others for the purpose
of carrying stock which will be “margin stock” after giving effect to the Loans or (ii) for any
purpose that entails a violation of, or is inconsistent with, the provisions of the Regulations of
the Board of Governors of the Federal Reserve System of the United States, including Regulation G,
U or X.



     SECTION 10.11 Title to Properties. Each Lincoln Party has good and marketable title
to all assets reflected in such entity’s most recent financial statements referred to in Section
10.5, except for assets disposed of in the ordinary course of business since the date of such
financial statements. All such assets are free and clear of any mortgage, security interest or
other Lien of any kind, other than any Liens permitted by this Agreement, except for those defects
in title (as distinct from Liens) that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.



     SECTION 10.12 Intellectual Property. Each Lincoln Party owns or has the legal and
valid right to use all intellectual property necessary for the operation of its business as
presently conducted, free from any Lien not permitted under this Agreement and free of any
restrictions material to the operation of its business as presently conducted.



     SECTION 10.13 Anti-Terrorism Laws.



     (a) No Borrower nor any Affiliate of a Borrower, is in violation in any material respect of
any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.



     (b) No Borrower, nor any Affiliate of a Borrower or their respective agents acting or
benefiting in any capacity in connection with the Advances or other transactions hereunder, is any
of the following (each a “Blocked Person”):




(i) a Person that is listed in the annex to, or is otherwise subject to the provisions of,
the Executive Order No. 13224;



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(ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order
No. 13224;




(iii) a Person with which any Lender or the Issuer is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;




(iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order No. 13224;




(v) a Person that is named as a “specially designated national” on the most current list
published by the U.S. Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official publication of such list,
or

(vi) a Person who is affiliated or associated with a Person listed above.


No Borrower or, to the knowledge of a Borrower, any of its agents acting or benefiting in any
capacity in connection with the Advances or other transactions hereunder, (i) conducts any business
or engages in making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to the Executive Order No. 13224.




     SECTION 10.14 Full Disclosure. No information, exhibits or reports furnished by
Holdings or any other Borrower to the Agent or any Lender omits to state any fact necessary to make
the statements contained therein not materially misleading in light of the circumstances and
purposes for which such information was provided. Holdings and each of the other Borrowers has
provided all information requested by the Agent or any Lender and all such information is complete
and accurate in all material respects.



ARTICLE 11

EVENTS OF DEFAULT




     Each of the following shall constitute an event of default (an “Event of Default”) hereunder:



     SECTION 11.1 Payments. If the principal of or interest on any Note, any Letter of
Credit reimbursement obligation not reimbursed pursuant to Section 5.1, any reimbursement, payment
or amount due the Agent or any of the Lenders, any amendment fee or administrative fee imposed by
any of the Lenders, any Letter of Credit fees or any Facility Fee, the Risk Participation Fee or
other fee or amount owing to the Lenders or the Agent under this Agreement or under any other Loan
Document shall not be paid in full punctually when due and payable.



     SECTION 11.2 Covenants. If any Borrower or Subsidiary shall fail or omit to perform
and observe (i) any covenant or agreement or other provision (other than those referred to in



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Section 11.1 hereof or clause (ii) of this Section 11.2) contained or referred to in this
Agreement, (ii) any covenant or agreement contained in any of Sections 8.4, 8.5, 8.8, 8.9 and 8.10
hereof and such failure or omission is not cured within 30 days following the earlier of a
Borrower’s actual knowledge thereof or written notice thereof from the Agent or any Lender or (iii)
any covenant or agreement or other provision contained or referred to in any other Loan Document
(after giving effect to any required notice, grace period or both in such other Loan Document), in
each case that is on such Borrower’s or such Subsidiary’s, as applicable, part to be complied with.




     SECTION 11.3 Warranties. If any representation, warranty or statement made or deemed
made in or pursuant to this Agreement or any other Loan Document or any other material information
furnished by Holdings or any Subsidiary to the Lenders or any thereof or any other holder of any
Note shall be false or erroneous in any material respect when furnished or made or deemed furnished
or made hereunder.



     SECTION 11.4 Cross Default. If Holdings or any Subsidiary, after any applicable
notice or grace period or both, (i) defaults in the payment of any principal or interest due and
owing upon any other Indebtedness or Indebtednesses in aggregate principal amount in excess of an
amount equal to two and one-half percent (2.5%) of Consolidated Net Worth at such time, (ii)
defaults in the performance of any other agreement, term or condition contained in any promissory
note, agreement or other instrument under which such Indebtedness or Indebtednesses, in aggregate
principal amount in excess of an amount equal to two and one-half percent (2.5%) of Consolidated
Net Worth at such time, are evidenced, created, constituted, secured or governed, and by reason of
such default the holder or holders of such Indebtedness or Indebtednesses have accelerated the
maturity thereof, or (iii) defaults in the performance of any other agreement, term or condition
contained in (A) those certain promissory notes in the original aggregate principal amount of
$150,000,000 issued by Holdings and Lincoln under and pursuant to that certain Note Purchase
Agreement dated March 12, 2002 among Holdings, Lincoln, State Farm Life Insurance Company, et al.)
or (B) any promissory note, agreement or other instrument under which Indebtedness or
Indebtednesses, in an aggregate principal amount in excess of $100,000,000, are evidenced, created,
constituted, secured or governed, in each case the effect of which default is to cause, or to
entitle or permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity.



     SECTION 11.5 Termination of Plan or Creation of Withdrawal Liability. If (a) any
Reportable Event occurs and the Majority Lenders, in their sole determination, deem such Reportable
Event to constitute grounds (i) for the termination of any Plan by the Pension Benefit Guaranty
Corporation or (ii) for the appointment by the appropriate United States district court of a
trustee to administer any Plan and such Reportable Event shall not have been fully corrected or
remedied to the full satisfaction of the Majority Lenders within thirty (30) days after giving of
written notice of such determination to the Borrowers by any Lender or (b) any Plan shall be
terminated within the meaning of Title IV of ERISA (other than a Standard Termination, as that term
is defined in Section 4041(b) of ERISA), or (c) a trustee shall be appointed by the appropriate
United States district court to administer any Plan, or (d) the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer
any Plan or (e) there occurs a withdrawal by Holdings or any Subsidiary from a



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Multi-Employer Plan which results or may result in a withdrawal liability in an amount that is
material in relation to the business, operations, affairs, financial condition, assets, or
properties of Holdings and its Subsidiaries taken as a whole.




     SECTION 11.6 Validity of Agreements. If this Agreement, the Notes, any Reimbursement
Agreement, or any other Loan Document shall for any reason cease to be, or be asserted by Holdings,
any other Borrower or any other party intended to be bound thereby (other than a Lender or the
Agent) not to be, a legal, valid and binding obligation of any party thereto (other than the Agent,
the Letter of Credit Issuer or any Lender) enforceable in accordance with its terms.



     SECTION 11.7 Solvency of Borrowers. If any Borrower shall (a) discontinue business
(except in connection with a transaction expressly permitted under Section 9.3, above), or (b)
generally not pay its debts as such debts become due, or (c) make a general assignment for the
benefit of creditors, or (d) apply for or consent to the appointment of a receiver, a custodian, a
trustee, an interim trustee or liquidator of all or a substantial part of its assets, or (e) be
adjudicated a debtor or have entered against it an order for relief under the Bankruptcy Code, or
(f) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization
or an arrangement with creditors or seeking to take advantage of any other Law (whether federal or
state) relating to relief of debtors, or admit by any answer, by default or otherwise) the material
allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other
proceeding (whether federal or state) relating to relief of debtors, or (g) suffer or permit to
continue unstayed and in effect for thirty (30) consecutive days any judgment, decree or order
entered by a court or governmental commission of competent jurisdiction, which assumes custody or
control of such Borrower approves a petition seeking reorganization of such Borrower or any other
judicial modification of the rights of its creditors, or appoints a receiver, custodian, trustee,
interim trustee or liquidator for such Borrower or of all or a substantial part of its assets, or
(h) take, or omit to take, any action in order thereby to effect any of the foregoing.



     SECTION 11.8 Judgments. If (a) one or more judgments for the payment of money in an
aggregate amount in excess of an amount equal to two and one-half percent (2.5%) of Consolidated
Net Worth at such time (unless, in the determination of the Majority Lenders, the Borrowers shall
have made adequate provision for the prompt payment thereof) shall be rendered against one or more
Borrowers, and the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or (b) any action shall be legally taken by a judgment
creditor to levy upon assets or properties of a Borrower to enforce any judgment.



ARTICLE 12

REMEDIES UPON DEFAULT



Notwithstanding any contrary provision or inference herein or elsewhere,




     SECTION 12.1 Optional Defaults. If any Event of Default referred to in any of
Sections 11.1 through and including 11.6, in clause (b) of Section 11.7, or in Section 11.8 shall



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occur, the Majority Lenders, shall have the right in their discretion (i) by directing the Agent, on
behalf of the Lenders, to give written notice to the Borrowers, to




     (1) terminate the Commitments hereby established, if not theretofore terminated, and forthwith
upon such election the obligations of the Lenders, and each thereof, to make any further loan or
loans hereunder and to risk participate in Letters of Credit hereunder or otherwise effect any
Credit Event, and the obligation of the Letter of Credit Issuer to issue Letters of Credit,
immediately shall be terminated, and/or



     (2) accelerate the maturity of all of the Obligations to the Lenders and the Agent (if not
already due and payable), whereupon all of the Obligations to the Lenders and the Agent shall
become and (including but not limited to the Notes and all reimbursement obligations under Letters
of Credit) thereafter be immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived by each Borrower,
and the Borrowers shall immediately deposit with the Agent as cash collateral an amount equal to
the aggregate Stated Amounts of all Letters of Credit then outstanding, and


(ii) to exercise (or cause the Agent to exercise) such other rights and remedies as may be
available hereunder, under the other Loan Documents, at law or in equity.




     SECTION 12.2 Automatic Defaults. If any Event of Default referred to in Section 11.7
(other than clause (b) thereof) shall occur:



     (1) all of the Commitments and the credits hereby established shall automatically and
forthwith terminate, if not theretofore terminated, and no Lender thereafter shall be under any
obligation to grant any further loan or loans hereunder or otherwise effect any Credit Event, nor
shall the Letter of Credit Issuer be under any obligation to issue any Letter of Credit hereunder,
and



     (2) the principal of and interest on any Notes and all reimbursement obligations with respect
to Letters of Credit then outstanding, all of the Borrowers’ other Lender Debt, and all of the
Obligations to the Lenders and the Agent shall thereupon become and thereafter be immediately due
and payable in full (if not already due and payable), all without any presentment, demand or notice
of any kind, which are hereby waived by each Borrower, and the Borrowers shall immediately deposit
with the Agent as cash collateral an amount equal to the aggregate Stated Amounts of all Letters of
Credit then outstanding, and



     (3) subject to any applicable automatic stay or other restriction of Law, the Agent and the
Lenders may exercise such other rights and remedies as may be available hereunder, under the other
Loan Documents, at law or in equity.



     SECTION 12.3 Offsets. If there shall occur or exist any Event of Default or if the
maturity of the Notes or any Letter of Credit is accelerated pursuant to Section 12.1 or 12.2, each
Lender shall have the right at any time to set off against, and to appropriate and apply toward the
payment of, any and all Indebtedness then owing by any Borrowers to that Lender (including, without
limitation, any participation purchased or to be purchased pursuant to Section 12.4),



68









 




whether or not the same shall then have matured, any and all deposit balances and all other
indebtedness then held or owing by that Lender to or for the credit or account of any Borrowers,
all without notice to or demand upon the Borrowers or any other person, all such notices and
demands being hereby expressly waived by the Borrowers.




     SECTION 12.4 Equalization of Advantage. Each Lender agrees with the other Lenders
that if it at any time shall obtain any Advantage over the other Lenders in respect of the
Obligations to the Lenders (except under Section 3.7, 3.8, 3.9 or 15.4), it will purchase from the
other Lenders, for cash and at par, such additional participation in the Obligations to the Lenders
as shall be necessary to nullify the Advantage. If any Advantage so resulting in the purchase of
an additional participation shall be recovered in whole or in part from the Lender receiving the
Advantage, each such purchase shall be rescinded, and the purchase price restored (but without
interest unless the Lender receiving the Advantage is required to pay interest on the Advantage to
the person recovering the Advantage from such Lender) ratably to the extent of the recovery. Each
Lender further agrees with the other Lenders that if it at any time shall receive any payment for
or on behalf of any Borrowers on any indebtedness owing by the Borrowers to that Lender by reason
of offset of any deposit or other indebtedness, it will apply such payment first to any and all
indebtedness owing by such Borrowers to that Lender pursuant to this Agreement (including, without
limitation, any participation purchased or to be purchased pursuant to this Section 12.4) until the
Obligations have been paid in full. The Borrowers agree that any Lender so purchasing a
participation from the other Lenders pursuant to this Section may exercise all its rights of
payment (including the right of set-off) with respect to such participation as fully as if such
Lender were a direct creditor of any Borrowers in the amount of such participation. If a
Defaulting Lender or Impacted Lender receives any Advantage, such Lender shall turn over such
payments to the Agent in an amount that would satisfy the cash collateral requirements set forth in
Section 3.6(a).



     SECTION 12.5 Application of Remedy Proceeds. All monies received by the Agent and
the Lenders from the exercise of remedies hereunder or under the other Loan Documents or under any
other documents relating to this Agreement or at Law shall, unless otherwise required by the terms
of the other Loan Documents or by applicable Law, be applied as follows:



     first, to the payment of all expenses (to the extent not paid by the Borrowers)
incurred by the Agent or the Lenders in connection with the exercise of such remedies, including,
without limitation, all reasonable costs and expenses of collection, attorneys’ fees, court costs
and any foreclosure expenses;



     second, to the payment of any fees then accrued and payable to the Lenders, the Letter
of Credit Issuer or the Agent under this Agreement in respect of the Loans or the Letters of Credit
outstanding;



     third, to the payment of interest then accrued on the outstanding Loans;



     fourth, to the payment of the principal balance then owing on the outstanding Loans
and the stated amounts of the Letters of Credit then outstanding (to be held and applied by the
Agent as security for the Risk Participation Exposure in respect thereof);



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     fifth, to the payment of all other amounts owed by the Borrowers to the Agent or the
Lenders under this Agreement or any other Loan Document; and



     finally, any remaining surplus after all of the Obligations have been paid in full, to
the Borrowers or to whomsoever shall be lawfully entitled thereto.



ARTICLE 13

THE AGENT




     SECTION 13.1 The Agent. Each Lender irrevocably appoints KeyBank to be its Agent
with full authority to take such actions, and to exercise such powers, on behalf of the Lenders in
respect of this Agreement and the other Loan Documents as are therein respectively delegated to the
Agent or as are reasonably incidental to those delegated powers. KeyBank in such capacity shall be
deemed to be an independent contractor of the Lenders. For the purposes of this Article 13,
“Lender” shall include any Lender.



     SECTION 13.2 Nature of Appointment. The Agent shall have no fiduciary relationship
with any Lender by reason of this Agreement and the other Loan Documents. The Agent shall not have
any duty or responsibility whatsoever to any Lender except those expressly set forth in this
Agreement and the other Loan Documents. Without limiting the generality of the foregoing, each
Lender acknowledges that the Agent is acting as such solely as a convenience to the Lenders and not
as a manager of the commitments or the Obligations evidenced by the Notes. This Article 13 does not
confer any rights upon the Borrowers or anyone else (except the Lenders), whether as a third party
beneficiary or otherwise.



     SECTION 13.3 KeyBank as a Lender; Other Transactions. KeyBank’s rights as a Lender
under this Agreement and the other Loan Documents shall not be affected by its serving as the
Agent. KeyBank and its affiliates may generally transact any banking, financial, trust, advisory
or other business with Holdings or its Subsidiaries (including, without limitation, the acceptance
of deposits, the extension of credit and the acceptance of fiduciary appointments) without notice
to the Lenders, without accounting to the Lenders, and without prejudice to KeyBank’s rights as a
Lender under this Agreement and the other Loan Documents except as may be expressly required under
this Agreement.



     SECTION 13.4 Instructions from Lenders. The Agent shall not be required to exercise
any discretion or take any action as to matters not expressly provided for by this Agreement and
the other Loan Documents (including, without limitation, collection and enforcement actions in
respect of any Obligations under the Notes or this Agreement and any collateral therefor)
except that the Agent shall take such action (or omit to take such action) other than
actions referred to in Section 15.1, as may be reasonably requested of it in writing by the
Majority Lenders with instructions and which actions and omissions shall be binding upon all the
Lenders; provided, however, that the Agent shall not be required to act (or omit
any act) if, in its judgment, any such action or omission might expose the Agent to personal
liability or might be contrary to this Agreement, any other Loan Documents or any applicable Law.



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     SECTION 13.5 Lenders’ Diligence. Each Lender (a) represents and warrants that it has
made its decision to enter into this Agreement and the other Loan Documents and (b) agrees that it
will make its own decision as to taking or not taking future actions in respect of this Agreement
and the other Loan Documents; in each case without reliance on the Agent or any other Lender and on
the basis of its independent credit analysis and its independent examination of and inquiry into
such documents and other matters as it deems relevant and material.



     SECTION 13.6 No Implied Representations. The Agent shall not be liable for any
representation, warranty, agreement or obligation of any kind of any other party to this Agreement
or anyone else, whether made or implied by Holdings or any other Borrower in this Agreement or any
other Loan Document or by a Lender in any notice or other communication or by anyone else or
otherwise.



     SECTION 13.7 Sub-Agents. The Agent may employ agents and shall not be liable (except
as to money or property received by it or its agents) for any negligence or misconduct of any such
agent selected by it with reasonable care. The Agent may consult with legal counsel, certified
public accountants and other experts of its choosing (including, without limitation, KeyBank’s
salaried employees or any otherwise not independent) and shall not be liable for any action or
inaction taken or suffered in good faith by it in accordance with the advice of any such counsel,
accountants or other experts which shall have been selected by it with reasonable care.



     SECTION 13.8 Agent’s Diligence. The Agent shall not be required (a) to keep itself
informed as to anyone’s compliance with any provision of this Agreement or any other Loan Document,
(b) to make any inquiry into the properties, financial condition or operation of Holdings or any of
its Subsidiaries or any other matter relating to this Agreement or any other Loan Document, (c) to
report to any Lender any information (other than which this Agreement or any other Loan Document
expressly requires to be so reported) that the Agent or any of its affiliates may have or acquire
in respect of the properties, business or financial condition of Holdings or any of its
Subsidiaries or any other matter relating to this Agreement or any other Loan Document or (d) to
inquire into the validity, effectiveness or genuineness of this Agreement or other Loan Document.



     SECTION 13.9 Notice of Default. The Agent shall not be deemed to have knowledge of
any Incipient Default or Event of Default unless and until it shall have received a written notice
describing it and citing the relevant provision of this Agreement or any other Loan Document. The
Agent shall give each Lender reasonably prompt notice of any such written notice except to any
Lender that shall have given the written notice.



     SECTION 13.10 Agent’s Liability. Neither the Agent nor any of its directors,
officers, employees, attorneys, and other agents shall be liable for any action or omission on
their respective parts except for gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (i) may treat the payee of any Revolving Credit Note as the
holder thereof until the Agent receives a fully executed copy of the assignment agreement required
by Section 14.1(b) signed by such payee and in form satisfactory to the Agent and the fee required
by Section 14.1(c); (ii) may consult with legal counsel, independent public



71









 




accountants and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice or such counsel, accountants
or experts which have been selected by the Agent with reasonable care; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this Agreement or any other Loan
Document, including, without limitation, the truth of the statements made in any certificate
delivered by or on behalf of the Borrowers under Article 6 or any Notice of Borrowing, Rate
Continuation/Conversion Request, Reimbursement Agreement or any other similar notice or delivery,
the Agent being entitled for the purposes of determining fulfillment of the conditions set forth
therein to rely conclusively upon such certificates; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or conditions of this
Agreement, the Notes or any other Loan Document or to inspect the property (including the books and
records) of Holdings or any Subsidiaries; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement,
any collateral covered by any agreement or any other Loan Document and (vi) shall incur no
liability under or in respect of this Agreement, the Notes or any other Loan Document by acting
upon any notice, consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable, telex or email) believed by it in good faith to be genuine and correct and signed
or sent by the proper party or parties.




     Neither the Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrowers on account of the failure of or delay in performance or breach by
any Lender of any of its obligations hereunder or to any Lender on account of the failure of or
delay in performance or breach by any other Lender or the Borrowers of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith or therewith.



     The Lenders each hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of this Agreement, the
Notes or any other Loan Document unless it shall be requested in writing to do so by the Majority
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 15.1).



     SECTION 13.11 Compensation. The Agent shall receive no compensation for its services
as agent of the Lenders in respect of this Agreement and the other Loan Document, except as
otherwise expressly agreed between the Borrowers and the Agent, but the Borrowers shall reimburse
the Agent periodically on its demand for out-of-pocket expenses, if any, reasonably incurred by it
as such and as to which Agent has delivered to the Borrowers’ reasonable substantiation.



     SECTION 13.12 Agent’s Indemnity. The Lenders shall indemnify the Agent (to the
extent the Agent is not reimbursed by the Borrowers) from and against (a) any loss or liability
(other than any caused by the Agent’s gross negligence or willful misconduct and other than any
loss to the Agent resulting from the Borrowers’ non-payment of agency fees owed solely to the
Agent) incurred by the Agent as such in respect of this Agreement, the Notes, the Letters of
Credit, or other Loan Document (as the Agent) and (b) any out-of-pocket expenses incurred in
defending itself or otherwise related to this Agreement, the Notes, any Letter of Credit, or other



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Loan Documents (other than any caused by the Agent’s gross negligence or willful misconduct)
including, without limitation, reasonable fees and disbursements of legal counsel of its own
selection (including, without limitation, the reasonable interdepartmental charges of its salaried
attorneys) in the defense of any claim against it or in the prosecution of its rights and remedies
as the Agent (other than the loss, liability or costs incurred by the Agent in the defense of any
claim against it by the Lenders arising in connection with its actions in its capacity as Agent);
provided, however, that each Lender shall be liable for only its Ratable Portion of
the whole loss or liability.




     SECTION 13.13 Resignation. The Agent (or any successor) may at any time resign as
such by giving thirty (30) days’ prior written notice to the Borrowers and to each Lender; and the
Majority Lenders may remove the Agent at any time with or without cause by giving written notice to
the Agent and the Borrowers. In either case, resignation or removal, the institution then serving
as Agent shall also resign as Letter of Credit Issuer in the manner provided in Section 5.3, above,
unless Holdings, on behalf of the Borrowers, has waived in writing the requirements of this
sentence. In any such case, the Majority Lenders shall appoint a successor to the resigned or
removed agent (the “Former Agent”), which shall also serve as successor Letter of Credit Issuer,
provided that the Majority Lenders obtain the Borrowers’ prior written consent to the successor
(which consent shall not be unreasonably withheld), by giving written notice to the Borrowers, the
Former Agent and each Lender not participating in the appointment; provided,
however, that, if at the time of the proposed resignation or removal of an Agent, any
Borrower is the subject of an action referred to in Section 11.7 or any other Event of Default
shall have occurred and be continuing, the Borrowers’ consent shall not be required. In the
absence of a timely appointment, the Former Agent shall have the right (but not the duty) to make a
temporary appointment of any Lender (but only with that Lender’s consent) to act as its successor
(and as successor Letter of Credit Issuer) pending an appointment pursuant to the immediately
preceding sentence. In either case, the successor Agent and Letter of Credit Issuer shall deliver
its written acceptance of appointment to the Borrowers, to each Lender and to the Former Agent,
whereupon (a) the Former Agent shall execute and deliver such assignments and other writings as the
successor Agent may reasonably require to facilitate its being and acting as the Agent and Letter
of Credit Issuer, (b) the successor Agent (and successor Letter of Credit Issuer) shall in any
event automatically acquire and assume all the rights and duties as those prescribed for the Agent
by this Article 13 and, subject to the provisions of Section 5.3, above, for the Letter of Credit
Issuer by Article 5, above, and (c) the Former Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents.



     SECTION 13.14 Lender Purpose. Each Lender represents and warrants to the Agent, the
other Lenders and the Borrowers that such Lender is familiar with the Securities Act of 1933, as
amended, and the rules and regulations thereunder and is not entering into this Agreement with any
intention to violate such Act or any rule or regulation thereunder. Subject to the provisions of
Sections 14.1, 14.2 and 14.3, each Lender shall at all times retain full control over the
disposition of its assets subject only to this Agreement and to all applicable Law.



     SECTION 13.15 No Reliance on Agent’s Customer Identification Program. Each of the
Lenders and the Letter of Credit Issuer acknowledges and agrees that neither such Lender nor the
Letter of Credit Issuer, nor any of their Affiliates, participants or assignees, may rely on the



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Agent to carry out such Lender’s, Letter of Credit Issuer’s, Affiliate’s, participant’s or
assignee’s customer identification program, or other obligations required or imposed under or
pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained
in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other
Anti-Terrorism Law, including any programs involving any of the following items relating to or in
connection with any of the Borrowers, their Affiliates or their agents, this Agreement, the other
Loan Documents or the transactions hereunder or contemplated hereby: (i) any identity verification
procedures, (ii) any record keeping, (iii) comparisons with government lists, (iv) customer notices
or (5) other procedures required under the CIP Regulations or such other laws.




ARTICLE 14

ASSIGNMENTS AND PARTICIPATIONS




     SECTION 14.1 Assignments.



     (a) Assignments by Borrowers Prohibited. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the successors and assigns
of such party; provided, however, that no Borrower shall assign or transfer any of
its rights or obligations hereunder or under any Note without the prior written consent of all of
the Lenders and the Agent.



     (b) Assignments by Lenders. Each Lender may assign all or any part of any of its
Revolving Credit Loans, its Note, its Commitment and its participation in the Letters of Credit
with the consent of Holdings, the Agent and the Letter of Credit Issuer, which consent shall not be
unreasonably withheld; provided that (i) no such consent by Holdings shall be required (A)
for any such assignment by any Lender to an Affiliate of such Lender or to another Lender or an
Affiliate of another Lender, or (B) if, at the time of such assignment, an Event of Default or
Incipient Default has occurred and is continuing; (ii) any such partial assignment shall be in an
amount at least equal to $5,000,000, unless such partial assignment is to another Lender; (iii)
each such assignment shall be made by a Lender in such manner that the same portion of its
Revolving Credit Loans, its Note, its Commitment and its participation in the Letters of Credit is
assigned to the assignee; and (iv) the assignee, if not already a Lender, shall agree to become a
party to this Agreement pursuant to an Assignment Agreement in the form of Exhibit F hereto,
including, without limitation, an Administrative Questionnaire as a supplement thereto in the form
of Exhibit G hereto. Upon execution and delivery by the assignor and the assignee to the Borrowers
and the Agent of an instrument in writing pursuant to which such assignee agrees to become a
“Lender” hereunder (if not already a Lender) having the share of the Total Commitment Amount, Loans
and Letters of Credit specified in such instrument, and upon consent thereto by the Agent, the
Letter of Credit Issuer and Holdings (to the extent, if any, required), the assignee shall have, to
the extent of such assignment (unless otherwise provided in such assignment with the consent of the
Agent and the Letter of Credit Issuer), the obligations, rights and benefits of a Lender hereunder
holding the share of the Total Commitment Amount, Loans and Letters of Credit (or portions thereof)
assigned to it (in addition to the share of the Total Commitment Amount, Loans and Letters of
Credit, if any, theretofore held by such assignee); and the assigning Lender shall, to the extent
of such assignment, be released from the



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share of the Total Commitment Amount, Loans and Letters of Credit and the obligations
hereunder so assigned.




     (c) Procedures. Upon its receipt of an assignment pursuant to Section 14.1(b) above
duly executed by an assigning Lender and the assignee, together with any Note subject to such
assignment and a processing and recordation fee of $3,500, the Agent shall, if such assignment has
been completed, accept such assignment. Within five (5) business days after receipt of such
notice, the Borrowers, at the Borrowers’ expense, shall execute and deliver to the Agent in
exchange for each surrendered Note a new Note to the order of the assignee in an amount equal to
the Commitment assumed by the assignee and, if the assigning Lender has retained a portion of its
Commitment, a new Note to the order of the assigning Lender in an amount equal to the share of its
Commitment retained by it hereunder. Such new Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Notes, shall be dated the effective
date of such assignment, shall otherwise be in substantially the form of Exhibit A hereto, and,
upon such execution and delivery shall be a “Note” under this Agreement. Canceled Notes shall be
returned to Holdings on behalf of the Borrowers.



     (d) Additional Restriction on Assignment. Anything in this Section 14.1 to the
contrary notwithstanding, except pursuant to this Agreement, no Lender may assign or participate
any interest in any Loan held by it hereunder to Holdings or any of its Subsidiaries or other
Affiliates without the prior written consent of each Lender.



     (e) Failure to Comply. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 14.1 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 14.2.



     SECTION 14.2 Participations. A Lender may sell or agree to sell to one or more other
Persons (each a “Participant”) a participation in all or any part of any Revolving Credit Loans
held by it, or in its Commitment or its participation in the Letters of Credit. Except as
otherwise provided in the last sentence of this Section 14.2, no Participant shall have any rights
or benefits under this Agreement or any Note or any other Loan Documents (the Participant’s rights
against such Lender in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by the Borrowers to any
Lender under this Agreement, and in respect of its Commitment, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Revolving Credit Loans and share
of Commitment, and as if such Lender were funding each of such Revolving Credit Loans and its share
of such Commitment in the same way that it is funding the portion of such Revolving Credit Loans
and its Commitment in which no participations have been sold. In no event shall a Lender that
sells a participation agree with the Participant (other than an Affiliate of such Lender) to take
or refrain from taking any action hereunder or under any other Loan Document, except that such
Lender may agree with the Participant that it will not, without the consent of the Participant,
agree to any modification, supplement or waiver hereof or of any of the Loan Documents to the
extent that the same, under Section 15.1 hereof, requires the consent of each Lender. The
Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.7 through
3.9, inclusive, and Section 12.3 (but, (i) only to the extent that the selling Lender is



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entitled to such benefits and (ii) as to any sums realized thereunder, subject to Section
12.4) with respect to its participating interest.




     SECTION 14.3 Permitted Pledges. In addition to the assignments and participations
permitted under the foregoing provisions of this Article 13, any Lender may assign and pledge all
or any portion of its Revolving Credit Loans and its Note to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.



     SECTION 14.4 Furnishing of Borrower Information. A Lender may furnish any information
concerning Holdings and its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including, with the prior written consent of Holdings, which consent
shall not be unreasonably withheld or delayed, prospective assignees and participants,
provided that no such consent shall be required upon and during the continuance of an Event
of Default).



ARTICLE 15

MISCELLANEOUS




     SECTION 15.1 Amendments, Consents. No amendment, modification, termination, or
waiver of any provision of this Agreement or of the Notes, nor consent to any variance therefrom,
shall be effective unless the same shall be in writing and signed by the Majority Lenders (and then
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given); provided, however, that the unanimous consent of all Lenders shall be
required with respect to any amendment, modification, termination, or waiver which would effect:




(i) the extension of maturity of any Note, or of the payment date of interest, principal
and/or fees thereunder or hereunder, or




(ii) any reduction in the rate of interest on the Notes, or in any amount of principal or
interest due on any Note or in the rate or amount of fees payable pursuant to Section 3.4,
or any change in the manner of pro rata application of any payments made by the Borrowers to
the Lenders hereunder, or




(iii) any change in any percentage voting requirement in this Agreement, or




(iv) any increase in the dollar amount or percentage of the Lenders’ Commitments or any
Lender’s Commitment without such Lender’s written consent; or




(v) any change in amount or timing of any fees payable under this Agreement, or




(vi) any release of any portion of collateral, if any, or any release of any Borrower from
its obligations under Article 5, or



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(vii) any change in any provision of this Agreement which requires all of the Lenders to
take any action under such provision or




(viii) any change in Section 12.4, Article 14 or this Section 15.1 itself.


Notice of amendments or consents ratified by the Lenders hereunder shall immediately be forwarded
by the Borrowers to all Lenders. Each Lender or other holder of a Note shall be bound by any
amendment, waiver or consent obtained as authorized by this section, regardless of its failure to
agree thereto.




     Notwithstanding the foregoing, (i) if the Majority Lenders enter into or consent to any
waiver, amendment or modification pursuant to this Section 15.1, no consent of any other Lender
will be required if, when such waiver, amendment or modification becomes effective, (A) the
Commitment of each Lender not consenting thereto terminates and (B) all amounts owing to it or
accrued for its account hereunder are paid in full; and (ii) if any Lender does not consent to a
proposed amendment, waiver, consent or release with respect to any Loan Document that requires the
consent of such Lender and that has been approved by the Majority Lenders, the Borrower may replace
such non-consenting Lender in accordance with Section 15.15; provided that such amendment,
waiver, consent or release can be effected as a result of the assignment contemplated by such
Section (together with all other such assignments required by the Borrowers to be made pursuant to
this paragraph).



     Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



     SECTION 15.2 No Waiver; Cumulative Remedies. No omission or course of dealing on the
part of Agent, any Lender or the holder of any Note in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are cumulative and in addition to
any other rights, powers or privileges held by operation of Law, by contract or otherwise.



     SECTION 15.3 Notices. All notices, requests, demands and other communications
provided for hereunder to a party hereto shall be in writing and shall be mailed or delivered to
such party (including, without limitation, delivery by facsimile transmission), addressed to such
party at its address specified on Schedule 1 hereto or at such other address as such party may from
time to time specify in writing to the other parties hereto. All notices, statements, requests,
demands and other communications provided for hereunder shall be deemed to be given or made when
delivered or forty-eight (48) hours after being deposited in the mails with postage prepaid by
registered or certified mail or delivered to a telegraph company, addressed as aforesaid, except
that notices from the Borrowers to Agent or the Lenders pursuant to any of the provisions hereof,
including, without limitation, Articles 3, 4, 5 and 6 hereof, shall not be effective until received
by Agent or the Lenders.



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     SECTION 15.4 Costs and Expenses. (a) The Borrowers agree to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery,
filing for record, modification, administration and amendment of this Agreement (including, without
limitation, any amendment), the Notes, the Letters of Credit, and the other Loan Documents and the
other documents to be delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with respect to advising
the Agent as to its rights and responsibilities under this Agreement. Without limiting the
generality of the foregoing, such costs and expenses shall include: (i) reasonable attorneys’ and
paralegals’ costs, expenses and disbursements of counsel to the Agent; (ii) extraordinary expenses
of Agent in connection with the administration of this Agreement, the Notes, Letters of Credit, any
other Loan Document and the other instruments and documents to be delivered hereunder; (iii) the
reasonable fees and out-of-pocket expenses of special counsel for the Agent or the Agent for the
benefit of the Lenders, with respect thereto and of local counsel, if any, who may be retained by
said special counsel with respect thereto; (iv) costs and expenses of the Agent (including
reasonable attorneys and paralegal costs, expenses and disbursements) for any amendment,
supplement, waiver, consent, or subsequent closing in connection with this Agreement, the Notes,
any Letters of Credit or any other Loan Document and the transactions contemplated thereby; (v)
sums paid or incurred by the Agent to pay any amount or take any action required of the Borrowers
under this Agreement, the Notes or any Loan Document that the Borrowers fail to pay or take; (vi)
the cost of any appraisal, survey, environmental audit or the retention of any other professional
service or consultant commenced after the occurrence and continuation of an Event of Default and
deemed reasonably necessary by the Agent; (vii) costs of inspections and periodic review of the
records of Holdings or any of its Subsidiaries, including, without limitation, travel, lodging, and
meals for inspections of Holdings’ and its Subsidiaries’ operations by the Agent at any time after
the occurrence and during the continuation of an Event of Default; (viii) as specified in the Fee
Letter, costs and expenses of forwarding loan proceeds, fees, interest and other payments to the
Lenders; and (ix) costs and expenses (including, without limitation, attorneys’ fees) paid or
incurred to obtain payment of the Obligations (including the Obligations arising under this Section
15.4), enforce the provisions of the Credit Agreement, the Notes, or any other Loan Document, or to
defend any claims made or threatened against the Agent arising out of the transactions contemplated
hereby (including without limitation, preparations for and consultations concerning any such
matters). The Borrowers further agree to pay on demand all costs and expenses of each Lender, if
any (including reasonable counsel fees and expenses), in connection with the restructuring or the
enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the
Notes, any other Loan Document and the other documents to be delivered hereunder, including,
without limitation, reasonable counsel fees and expenses in connection with the enforcement of
rights under this Section 15.4. The foregoing shall not be construed to limit any other provisions
of this Agreement, the Notes, or any other Loan Documents regarding costs and expenses to be paid
by the Borrowers. All of the foregoing costs and expenses may be charged, in the Agent’s sole
discretion, to the Borrowers’ loan accounts as Revolving Credit Loans (notwithstanding existence of
any Incipient Default or Event of Default or the failure of the conditions of Article 7 to have
been satisfied).



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     (b) Without duplication of sums owing under Section 15.4(a) above, each Borrower shall
indemnify each of the Lender Parties, their respective Affiliates and the respective directors,
officers, employees, agents and advisors of such Lender Party and its Affiliates (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the fees, charges and disbursements of
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by any of the Lincoln Parties party
to the Loan Documents of their respective obligations thereunder or the consummation of the
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Letter of Credit Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by any Borrower or any
Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that (I) such indemnity
shall not be available to any Indemnitee to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from such Indemnitee’s gross negligence or willful
misconduct; (II) such indemnity shall not be available to any Indemnitee for losses, claims,
damages, liabilities or related expenses arising out of a proceeding in which such Indemnitee and
any Borrower are adverse parties to the extent that any Borrower prevails on the merits, as
determined by a court of competent jurisdiction (it being understood that nothing in this Agreement
shall preclude a claim or suit by such Borrower against any Indemnitee for such Indemnitee’s
failure to perform any of its obligations to such Borrower under the Loan Documents); (III) the
Borrowers shall not, in connection with any such proceeding or related proceedings in the same
jurisdiction and in the absence of conflicts of interest or differing interests among the
Indemnitees, be liable for the fees and expenses of more than one law firm at any one time for the
Indemnitees (which law firm (or, if applicable, law firms) shall be selected (A) by mutual
agreement of the Majority Lenders (or, if applicable, such respective interested Indemnitees) and
the Borrowers or (B) if no such agreement has been reached following the Lenders’ (or, if
applicable, such interested Indemnitees) good faith consultation with the Borrowers with respect
thereto, by the Majority Lenders (or, if applicable, such respective interested Indemnitees) in
their sole discretion); (IV) each Indemnitee shall give such Borrower (A) prompt notice of any such
action brought against such Indemnitee in connection with a claim for which it is entitled to
indemnity under this Section and (B) an opportunity to consult from time to time with such
Indemnitee regarding defensive measures and potential settlement; and (V) the Borrowers shall not
be obligated to pay the amount of any settlement entered into without their written consent (which
consent shall not be unreasonably withheld).



     (c) To the extent that any Borrower fails to pay any amount required to be paid by it to the
Agent or the Letter of Credit Issuer under subsection (a) or (b) of this Section, each Lender
severally agrees to pay to the Agent or the Letter of Credit Issuer, as the case may be, such
Lender’s Ratable Share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or



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indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against such Agent or the Letter of Credit Issuer in its capacity as such.




     (d) To the extent permitted by applicable law, each Borrower shall not assert, and each hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, any Loan or Letter of Credit or the use of the proceeds thereof.



     (e) All amounts payable under this Section shall be due within ten (10) Business Days after
written demand therefor.



     SECTION 15.5 Obligations Several. The obligations of the Lenders hereunder are
several and not joint. Nothing contained in this Agreement and no action taken by Agent or the
Lenders pursuant hereto shall be deemed to constitute the Lenders to be a partnership, association,
joint venture or other entity. No default by any Lender hereunder shall excuse the other Lenders
from any obligation under this Agreement; but no Lender shall have or acquire any additional
obligation of any kind by reason of such default.



     SECTION 15.6 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.



     SECTION 15.7 Binding Effect; Assignment. This Agreement shall become effective when
it shall have been executed by the Borrowers, Agent and by each Lender and thereafter shall be
binding upon and inure to the benefit of the Borrowers and each of the Lenders and their respective
successors and permitted assigns, except that the Borrowers shall not have the right to assign
their rights hereunder or any interest herein without the prior written consent of all of the
Lenders. No person, other than the Lenders, shall have or acquire any obligation to grant the
Borrowers any Loans hereunder. Any Lender may at any time sell, assign, transfer, grant a
participation pursuant to Article 14 hereof.



     SECTION 15.8 Governing Law. This Agreement, each of the Notes and any other Loan
Documents shall be governed by and construed in accordance with the Laws of the State of Ohio and
the respective rights and obligations of the Borrowers and the Lenders shall be governed by Ohio
Law.



     SECTION 15.9 Severability of Provisions; Captions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such provision in any
other jurisdiction. The several captions to sections and subsections herein are inserted for
convenience only and shall be ignored in interpreting the provisions of this Agreement.



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     SECTION 15.10 Entire Agreement. This Agreement and the other Loan Documents referred
to in or otherwise contemplated by this Agreement set forth the entire agreement of the parties as
to the transactions contemplated by this Agreement.



     SECTION 15.11 Confidentiality. The Agent and the Lenders hereby acknowledge that
Holdings and its Subsidiaries have financial and other data and information the confidentiality of
which is important to their business. The Agent and the Lenders agree to use all reasonable
efforts to keep confidential any such confidential information conveyed to them and appropriately
designated in writing by Holdings on behalf of the Borrowers as being confidential information,
except that this Section shall not be binding on the Agent or the Lenders after the
expiration of three (3) years after the termination of this Agreement and shall not preclude the
Agent and the Lenders from furnishing any such confidential information: (i) subject to Holdings’
receipt of prior notice from the Agent or a Lender, if permitted under applicable law and such
legal proceedings, to the extent which may be required by subpoena or similar order of any court of
competent jurisdiction (which notice, if so permitted under applicable law and such legal
proceedings, shall advise Holdings of the information required by such subpoena or order, the party
to whom such subpoena or order requires such information to be delivered and the court of other
tribunal that issued such subpoena or order), (ii) to the extent such information is required to be
disclosed to any authority over the Agent or a Lender or its securities, (iii) to any other party
to this Agreement, (iv) to any Affiliate of the Agent or a Lender so long as such Affiliate agrees
in writing to Holdings to be bound by the provisions of this Section 15.11, (v) to any actual or
prospective successor Agent and to any actual or prospective transferee, participant or
subparticipant of all or part of a Lender’s rights arising out of or in connection with this
Agreement or any thereof so long as such prospective transferee, participant or subparticipant to
whom disclosure is made agrees in writing to Holdings to be bound by the provisions of this Section
15.11, (vi) to anyone if it shall have been already publicly disclosed (other than by the Agent or
a Lender in contravention of this Section 15.11), (vii) to the extent reasonably required in
connection with the exercise of any right or remedy under this Agreement or any other Loan
Document, (viii) to the Agent’s or a Lender’s legal counsel, auditors, professional advisors and
consultants, and accountants and (ix) in connection with any legal proceedings instituted by or
against the Agent or a Lender in its capacity as the Agent or a Lender under this Agreement.



     SECTION 15.12 JURY TRIAL WAIVER. EACH BORROWER, EACH LENDER, THE AGENT AND THE
LETTER OF CREDIT ISSUER HEREBY IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY
OTHER LOAN DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
THE NOTES, OR ANY OTHER LOAN DOCUMENT AND THE RELATIONSHIPS THEREBY ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims, and all other statutory and common law claims. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS
AGREEMENT. In the event of litigation, this provision may be filed as a written consent to a trial
by the court.



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     SECTION 15.13 Jurisdiction; Venue; Inconvenient Forum.



     (a) Jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN CUYAHOGA COUNTY, OHIO, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL
AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION.



     (b) Venue; Inconvenient Forum. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBLIGATION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT IN ANY OHIO STATE OR
FEDERAL COURT SITTING IN OHIO. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT. THE BORROWER CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND
FREELY MADE.



     SECTION 15.14 USA Patriot Act. Each Lender, the Letter of Credit Issuer or assignee
or participant of a Lender or the Issuer that is not incorporated under the Laws of the United
States of America or a state thereof (and is not excepted from the certification requirement
contained in Section 313 of the USA Patriot Act and the applicable regulations because it is both
(i) an Affiliate of a depository institution or foreign bank that maintains a physical presence in
the United States or foreign country, and (ii) subject to supervision by a banking authority
regulating such affiliated depository institution or foreign bank) shall deliver to the Agent the
certification, or, if applicable, recertification, certifying that such Lender or the Issuer is not
a “shell” and certifying to other matters as required by Section 313 of the USA Patriot Act and the
applicable regulations: (1) within ten (10) days after the Restatement Date, and (2) as such other
times as are required under the USA Patriot Act.



82









 





     SECTION 15.15 Replacement of Lenders. If any Lender is a Defaulting Lender, or if
any Lender requests compensation under Section 3.7, 3.8 or 3.9, or if the Borrowers are required to
pay any additional amount to any Lender or any governmental authority for the account of any Lender
pursuant to Section 3.7, 3.8 or 3.9, or if any circumstance exists under Section 15.1 that gives
the Borrowers the right to replace a Lender as a party hereto, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 14.1, other than the consent of the Lender being
replaced), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that:




     (a) the Borrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 14.1(c);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Revolving Credit Loans, accrued interest thereon, accrued fees and all
other Obligations then owing to it hereunder and under the other Loan Documents (including
any amounts under Section 3.3(d)) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrowers (in the case of all other
amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.7, 3.8 or 3.9 or payments required to be made pursuant to Section 3.7, 3.8 or 3.9,
such assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.


A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.




ARTICLE 16

JOINT AND SEVERAL




     SECTION 16.1 Joint and Several. The Borrowers agree and acknowledge that their
liability to pay all Loans and to perform all other Obligations under this Agreement and each other
Loan Document to which they are a party is and shall be joint and several. No Borrower shall have
any right of subrogation, reimbursement or similar right in respect of its payment of any sum or
its performance of any other obligation hereunder unless and until all Obligations have been paid
in full and the Lenders, the Letter of Credit Issuer and the Agent have no further obligation
hereunder. In addition, each Borrower confirms that upon each Credit Event, it will have received
adequate consideration and reasonably equivalent value for the
Indebtedness incurred and other agreements made in the Loan Documents. No Borrower could reasonably expect
to obtain financing separately on terms as favorable as those provided for herein.




83












 





     SECTION 16.2 Obligations Absolute. The Obligations of each Borrower hereunder shall
be valid and enforceable and, except as expressly provided herein, shall not be subject to
limitation, impairment or discharge for any reason (other than the payment in full of the
Obligations), including, without limitation, the occurrence of any failure to assert or enforce or
agreement not to assert or enforce any claim or demand of any right power or remedy with respect to
the Obligations or any agreement relating thereto, or with respect to any guaranty thereof or
security therefor or any other act or thing or omission which may or might in any manner or to any
extent vary the risk of such Borrower as an obligor in respect of the Obligations; and each
Borrower hereby waives (i) any defense based upon any statute or rule of law or equity to the
effect that the obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal, and (ii) to the fullest extent permitted by law, any
defenses or benefits which may be derived from or afforded by law or equity which limit the
liability of or exonerate guarantors or sureties, or which may conflict with terms of this
Agreement or the other Loan Documents.



     SECTION 16.3 Limitations.



     (a) If the Obligations of a Borrower would be held or determined by a court or tribunal having
competent jurisdiction to be void, invalid or unenforceable on account of the amount of its
aggregate liability under this Agreement or the Notes, then, notwithstanding any other provision of
this Agreement or the Notes to the contrary, the aggregate amount of the liability of such Borrower
under this Agreement and the Notes shall, without any further action by such Borrower, the Lenders,
the Agent, the Letter of Credit Issuer or any other person, be automatically limited and reduced to
an amount which is valid and enforceable. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts that are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for,
charged or otherwise received by the Lender holding such Loan in accordance with applicable law,
the rate of interest payable in respect of such Loan hereunder, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not payable as a result
of the operation of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such Lender shall have received such cumulated amount, together with interest
thereon at the Fed Funds Rate to the date of payment.



     (b) Without limiting the generality of paragraph (a), above, each Borrower and the Agent, the
Letter of Credit Issuer and each Lender, hereby confirms that it is the intention of all such
parties that none of this Agreement, the Notes or any other Loan Document constitute a fraudulent
transfer or conveyance under the Bankruptcy Code, the Uniform Fraudulent Conveyances Act, the
Uniform Fraudulent Transfer Act or similar state statute applicable to the Loan Documents.
Therefore, such parties agree that the Obligations of a Borrower shall be limited to such maximum
amount as will, after giving effect to such maximum amount and other contingent and fixed
liabilities of such Borrower that are relevant under such laws, and after



84









 




giving effect to any collections from, rights to receive contribution from or payments made by
or on behalf of the other Borrowers and any other obligor, result in the Obligations not
constituting a fraudulent transfer or conveyance.




     (c) The provisions of this Section 16.3 are intended solely to preserve the rights of Lenders,
the Letter of Credit Issuer and the Agent hereunder to the maximum extent permitted by applicable
Law, and neither a Borrower nor any other Person shall have any right or claim under such
provisions that would not otherwise be available under applicable Law.



[No additional provisions on this page; this page followed by signature pages]




85









 





     IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date first
above written.



	 	 	 	 	 
	BORROWERS


LINCOLN ELECTRIC HOLDINGS, INC.

 	 
	By  	/s/
John M. Stropki	 
	 	John M. Stropki, Chairman, 	 
	 	President and Chief Executive Officer 	 
	 
	 	 
	And  	/s/
Vincent K. Petrella	 
	 	Vincent K. Petrella, Senior Vice President, 	 
	 	Chief Financial Officer and Treasurer 	 
	 
	 	THE LINCOLN ELECTRIC COMPANY

 	 
	By  	/s/
John M. Stropki	 
	 	John M. Stropki, President and 	 
	 	Chief Executive Officer 	 
	 
	 	 
	And  	/s/
Paul R. Klingensmith	 
	 	Paul R. Klingensmith, Treasurer 	 
	 	 	 
	 
	LINCOLN ELECTRIC INTERNATIONAL

HOLDING COMPANY

 	 
	By  	/s/
Vincent K. Petrella	 
	 	Vincent K. Petrella, Treasurer 	 
	 	 	 
	 
	J.W. HARRIS CO., INC.

 	 
	By  	/s/
Robert A. Nelson	 
	 	Robert A. Nelson, Treasurer 	 
	 	 	 



86









 







	 	 	 	 	 
	LINCOLN GLOBAL, INC.

 	 
	By  	/s/
Gabriel Bruno
	 
	 	Gabriel Bruno, Treasurer 	 
	 	 	 
	 
	VERNON TOOL CO., LTD.

 	 
	By  	/s/
Geoff Allman	 
	 	Geoff Allman, Treasurer 	 
	 	 	 



87









 







AGENT




KEYBANK NATIONAL ASSOCIATION,

AS AGENT




	 	 	 	 	 
	 	 
	By  	/s/
Brian Fox	 
	 	Brian Fox, Vice President 	 



LETTER OF CREDIT ISSUER




KEYBANK NATIONAL ASSOCIATION,

AS LETTER OF CREDIT ISSUER




	 	 	 	 	 
	By  	/s/
Brian Fox	 
	 	Brian Fox, Vice President 	 



88









 






	 	 	 	 	 



LENDERS




BANK OF AMERICA, N.A.




	 	 	 	 	 	 
	By  	/s/
Matthew Buzzelli	 
	 	Matthew
Buzzelli, Vice President



89









 









	 	 	 	 	 



THE BANK OF TOKYO — MITSUBISHI UFJ, LTD.



	 	 	 	 	 	 
	By  	/s/
Victor Pierzchalski	 
	 	Victor
Pierzchalski, Authorized
Signatory



90









 






	 	 	 	 	 



JPMORGAN CHASE BANK, N.A.



	 	 	 	 	 	 
	By  	/s/
Gregory T. Martin	 
	 	Gregory
T. Martin, Vice President


91









 







	 	 	 	 	 



KEYBANK NATIONAL ASSOCIATION




	 	 	 	 	 
	By  	/s/
Brian Fox	 
	 	Brian Fox, Vice President 	 
	 	 	 



92









 







	 	 	 	 	 



THE NORTHERN TRUST COMPANY



	 	 	 	 	 	 
	By  	/s/
Jeffrey P. Sullivan	 
	 	Jeffrey
P. Sullivan, Vice President



93









 








	 	 	 	 	 



PNC BANK, NATIONAL ASSOCIATION



	 	 	 	 	 	 
	By  	/s/
Joseph G. Moran	 
	 	Joseph
G. Moran, Senior Vice President



94











 





List of Exhibits




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Revolving Credit Note
	 
	 	 	 	 
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	Exhibit C

	 	-
	 	Form of Rate Conversion/Continuation Request
	 
	 	 	 	 
	Exhibit D

	 	-
	 	Form of Reduction Notice
	 
	 	 	 	 
	Exhibit E

	 	-
	 	Form of Certificate of Financial Officer
	 
	 	 	 	 
	Exhibit F

	 	-
	 	Form of Assignment Agreement
	 
	 	 	 	 
	Exhibit G

	 	 	 	Form of Administrative Questionnaire






95









 






List of Schedules




	 	 	 	 	 
	Schedule 1

	 	-
	 	Addresses
	 
	 	 	 	 
	Schedule 9.2

	 	-
	 	Existing Investments
	 
	 	 	 	 
	Schedule 9.4

	 	-
	 	Existing Liens
	 
	 	 	 	 
	Schedule 10.1

	 	-
	 	Existing Subsidiaries
	 
	 	 	 	 
	Schedule 10.3

	 	-
	 	Litigation






96









 






ANNEX A




To Amended and Restated Credit Agreement 

dated November 18, 2009 among Lincoln Electric Holdings, Inc., et al.




	 	 	 	 	 
	Lender	 	Amount of Commitment
	Bank of America, N.A.
	 	$	25,000,000	 
	 
	 	 	 	 
	The Bank of Tokyo — Mitsubishi UFJ, Ltd.
	 	$	25,000,000	 
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	25,000,000	 
	 
	 	 	 	 
	KeyBank National Association
	 	$	25,000,000	 
	 
	 	 	 	 
	The Northern Trust Company
	 	$	25,000,000	 
	 
	 	 	 	 
	PNC Bank, National Association
	 	$	25,000,000	 






97









 






Schedule 1

Addresses




	 	 	 
	Agent:
	 	 
	KeyBank National Association

	 	Address for Notices:
	 

	 	127 Public Square

Cleveland, Ohio 44114-1306

Attention: Kathy Koenig, KNB Services

Telecopy: (216) 370-6113

Email: Kathy_A_Koenig@KeyBank.com
	 
	 	 
	 

	 	Payment Office:
	 

	 	127 Public Square

Cleveland, Ohio 44114-1306

Attention: Kathy Koenig, KNB Services

Telecopy: (216) 370-6113

Email: Kathy_A_Koenig@KeyBank.com
	 
	 	 
	Letter of Credit Issuer:
	 	 
	KeyBank National Association

	 	Address for Notices:
	 

	 	127 Public Square

Cleveland, Ohio 44114-1306

Attention: Kathy Koenig, KNB Services

Telecopy: (216) 370-6113

Email: Kathy_A_Koenig@KeyBank.com
	 
	 	 
	Lenders:
	 	 
	Bank of America, N.A.

	 	Address for Notices:
	 

	 	Mail Code IL1-231-10-06

231 South LaSalle Street

Chicago, Illinois 60604

Attention: Michael B. Delaney

Telecopy: (415) 503-5114

Email:
	 
	 	 
	 

	 	Lending Office:
	 

	 	101 N Tryon Street

Charlotte, NC 28255

Attention: Mr. Saurav Banerjee, CSR

Telecopy: (312) 453-6325

Email: sbanerjee@bankofamerica.com






 









 






	 	 	 
	The Bank of Tokyo — Mitsubishi UFJ, Ltd.

	 	Address for Notices:
	 

	 	1251 Avenue of the Americas

New York, New York 10020-1104

Attention: US Corporate Banking

                  John DiLegge

Telecopy: (312) 696-4535

Email: jdilegge@us.mufg.jp
	 
	 	 
	 

	 	Lending Office:
	 

	 	1251 Avenue of the Americas

New York, New York 10020-1104

Attention: Loan Operations Department

                  Rolando Uy

Telecopy: (201) 521-2304 or (201) 521-2305
	 
	 	 
	JPMorgan Chase Bank, N.A.

	 	Address for Notices:
	 

	 	10 S. Dearborn, Floor 9

Mail Code IL1-0364

Chicago, IL 60603

Attention: Gregory T. Martin

Phone: 312-325-3235

Telecopy: 312-212-5912

Email: gregory.t.martin@jpmorgan.com
	 
	 	 
	 

	 	Lending Office:
	 

	 	10 South Dearborn, Floor 7

Chicago, IL 60603-2003

Phone: 312-385-7072

Telecopy: 312-256-2608

Email:

cls.chicago.non.agented.servicing@chase.com
	 
	 	 
	KeyBank National Association

	 	Address for Notices:
	 

	 	127 Public Square

Cleveland, Ohio 44114-1306

Attention: Brian Fox

Telecopy: (216) 689-4649

Email: Brian_Fox@KeyBank.com
	 
	 	 
	 

	 	Lending Office:
	 

	 	127 Public Square

Cleveland, Ohio 44114-1306

Attention: Large Corporate

Telecopy: (216) 689-4981

Email: Brian_Fox@KeyBank.com






 









 






	 	 	 
	The Northern Trust Company

	 	Address for Notices:
	 

	 	50 South LaSalle Street

Chicago, Illinois 60675

Attention: David J. Sullivan

Telecopy: (312) 444-7028

Email:
	 
	 	 
	 

	 	Lending Office:
	 

	 	The Northern Trust Company

50 S. LaSalle Street

Chicago, IL 60603

Telecopy: (312) 444-7028

E-mail: js193@ntrs.com
	 
	 	 
	PNC Bank, National Association

	 	Address for Notices:
	 

	 	Mail Code XX-YB13-08-1

1900 E. 9th Street, 8th Floor

Cleveland, OH 44114

Attention: Jospeh G. Moran

Telecopy: (216) 222-9396

Email: joseph.moran@pnc.com
	 
	 	 
	 

	 	Lending Office:
	 

	 	Mail Code BR-YB58-01-P

6750 Miller Road

Brecksville, OH 44141

Attention: Kimberly Thompson

Telecopy: (866) 932-2125

Email: kimberly.thompson@pnc.com
	 
	 	 
	Borrowers:

	 	Address for Notices:
	 
	 	 
	Lincoln Electric Holdings, Inc.

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Chief Financial Officer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com
	 
	 	 
	The Lincoln Electric Company

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Treasurer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com






 









 






	 	 	 
	Lincoln Electric International Holding 

Company

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Treasurer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com
	 
	 	 
	J.W. Harris Co., Inc.

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Treasurer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com
	 
	 	 
	Lincoln Global, Inc.

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Treasurer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com
	 
	 	 
	Vernon Tool Co., Ltd.

	 	22801 St. Clair Avenue

Cleveland, Ohio 44117-1199

Attention: Treasurer

Telecopy: (216) 486-6476

Email: Paul_Klingensmith@lincolnelectric.com






 









 






SCHEDULE
9.2

Existing Investments

Lincoln’s Joint Ventures




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage
	Name	 	Jurisdiction	 	Owner	 	Ownership
	A. B. Arriendos S.A.
	 	Chile	 	Inversiones LyL S.A.	 	50.00%
	Inversiones LyL S.A.
	 	Chile	 	Lincoln Electric International Holding Company	 	50.00%
	The Lincoln Electric Heli (Zhengzhou) Welding
Materials Company
Ltd.
	 	China	 	Lincoln Electric Henan Investment Holdings LLC.	 	60.00%
	Kaynak Teknigi Sanayi ve Ticaret
A.S.
	 	Turkey	 	Lincoln Electric France S.A.S.	 	50.00%
	Kuang Tai Metal (Vietnam) Co. Ltd.
	 	Vietnam	 	The Lincoln Electric Company (Asia Pacific) Pte. Ltd.	 	3.24%






NOTES:



At December 31, 2008, the Lincoln Parties’ investment in joint ventures totaled approximately
$62,358,000, as shown on the Consolidated Balance Sheet for Holdings and its Subsidiaries as of
December 31, 2008, as contained in Holdings’ Form 10-K for the fiscal year ended December 31, 2008,
as filed with the Securities and Exchange Commission.



On July 29, 2009, Holdings announced the acquisition of 100% control of Jinzhou Jin Tai Welding and
Material Co., Ltd. (“Jin Tai”) and the divestiture of a 35% interest in Kuang Tai Metal Industrial
Co., Ltd. (“Kuang Tai”). Previously, Holdings, through its Asian subsidiary, had owned 48% of Jin
Tai with the remaining 52% held by Kuang Tai and other partners. Lincoln exchanged its 35%
ownership interest in Kuang Tai for the remaining 52% of Jin Tai.




 









 








Schedule 9.4 — Existing Liens




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Legal Entity	 	Creditor	 	Amount	 	Type	 	Maturity	 	Security
	Lincoln Brazil

	 	BB Leasing Arrendamento

Mercantile
	 	$	95,335	 	 	Capital Lease
	 	Jan 2011
	 	Car
	Lincoln Brazil

	 	Banco Itau-Unibanco S/A
	 	$	291,922	 	 	Stand By Letter of
Credit
	 	Jul 2010
	 	Accounts Receivable
	Lincoln Brazil

	 	Banco do Brasil S/A
	 	$	203,625	 	 	Factoring
	 	Mar 2010
	 	Accounts Receivable
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lincoln Soldaduras de
Venezuela

	 	Banco Provincial
	 	$	7,915	 	 	Capital Leasing
	 	Feb 17 2010
	 	Three 4 MT Trucks
	Lincoln Soldaduras de
Venezuela

	 	Bancaribe
	 	$	171,639	 	 	Trade Notes Discount
	 	Nov 15 2009
	 	Trade Notes Receivable
	Lincoln Soldaduras de
Venezuela

	 	Banco Exterior
	 	$	182,429	 	 	Trade Notes Discount
	 	Jan 26 2010
	 	Trade Notes Receivable
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lincoln Electric Italia

	 	Banca Ital Lease
	 	$	3,250,112	 	 	Capital Lease
	 	Feb 27 2012
	 	Building
	Electro Arco

	 	Banco Espirito Santo
	 	$	2,716	 	 	Capital Lease
	 	Jun 26,2010
	 	Car
	Electro Arco

	 	Banco Espirito Santo
	 	$	431,384	 	 	Capital Lease
	 	Nov 20,2011
	 	Drawing machine, chiller, water cooling
	Electro Arco

	 	Caixa Leasing e Factoring
	 	$	249,862	 	 	Capital Lease
	 	May 20, 2017
	 	Porto Warehouse Building
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lincoln Soldaduras de Colombia

	 	Leasing de Credito
	 	$	24,750	 	 	Capital Lease
	 	Mar 18 2012
	 	Car
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	All amounts USD
	 	 	 	 	 	 	 	 	 	 	 	 







 











 





SCHEDULE 10.1




Existing Subsidiaries




	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	The Lincoln Electric Company

	 	Ohio
	 	Lincoln Electric Holdings, Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Henan Investment 

Holdings LLC

	 	Delaware
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric International 

Holding Company

	 	Delaware
	 	Lincoln Electric Holdings, Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Company of

	 	Nigeria
	 	Lincoln Electric Dutch Holdings B.V.
	 	 	99.99	%
	 
	 	 	 	 	 	 	 	 
	Nigeria Limited

	 	 	 	Lincoln Electric International Holding

Company
	 	 	.01	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric North America,
Inc.

	 	Delaware
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Novo Holdings LLC

	 	Delaware
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Global Holdings LLC

	 	Delaware
	 	Lincoln Electric North America, Inc. 


Lincoln Canada
Holdings ULC
	 	100.00%

Common

Preferred

	 
	 	 	 	 	 	 	 	 
	Lincoln Global, Inc.

	 	Delaware
	 	Lincoln Global Holdings, LLC
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Maquinas Holdings LLC

	 	Delaware
	 	Lincoln Electric Luxembourg S.àr.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Singapore Holdings LLC

	 	Delaware
	 	Lincoln Canada International Holdings

LP
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Smart Force, LLC

	 	Delaware
	 	J.W. Harris Co., Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Welding, Cutting, Tools &

Accessories, LLC

	 	Delaware
	 	J.W. Harris Co., Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Bester S.A.

	 	Poland
	 	Lincoln Electric Luxembourg S.àr.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Calorific GmbH

	 	Germany
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Calorific Limited (Dormant)

	 	Ireland
	 	Lincoln Electric Luxembourg S.àr.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Calorific International
Sp. z.o.o.

	 	Poland
	 	Lincoln Electric Luxembourg S.àr.l.
	 	 	100.00	%






 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	Harris Calorific S.r.l.

	 	Italy
	 	Lincoln Electric Italia S.r.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Euro Corp.

	 	Delaware
	 	Lincoln Electric Holdings Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Euro S.L.

	 	Spain
	 	Harris Euro Corp.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Harris Soldas Especiais S.A.

	 	Brazil
	 	Lincoln Electric Luxembourg S.àr.l.
	 	 	89.99	%
	 

	 	 	 	Lincoln Electric International Holding

Company
	 	 	0.01	%
	 
	 	 	 	 	 	 	 	 
	J.W. Harris Co., Inc.

	 	Ohio
	 	Lincoln Electric Holdings, Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	J.W. Harris International LLC

	 	Ohio
	 	J.W. Harris Co., Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Canada Holdings ULC

	 	Nova Scotia
	 	Lincoln Electric Holdings S.a.r.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Canada International

	 	Ont., Canada
	 	Lincoln Canada Holdings ULC
	 	 	99.00	%
	Holdings LP

	 	 	 	Lincoln Electric Company of Canada GP
Limited
	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 
	LE Torreon BCS, S.de R.L. de C.V.

	 	Mexico
	 	Lincoln Electric Manufactura, S.A. de
C.V.
	 	 	99.97	%
	 

	 	 	 	Lincoln Electric Maquinas, S.de R.L.
de C.V.
	 	 	.03	%
	 
	 	 	 	 	 	 	 	 
	LE Torreon WCS, S.de R.L. de C.V.

	 	Mexico
	 	Lincoln Electric Manufactura, S.A. de
C.V.
	 	 	99.97	%
	 

	 	 	 	Lincoln Electric Maquinas, S.de R.L.
de C.V.
	 	 	.03	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric S.A.

	 	Argentina
	 	Lincoln Electric International Holding

Company
	 	 	97.40	%
	 

	 	 	 	The Lincoln Electric Company
	 	 	2.60	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Company (India)

	 	India
	 	Lincoln Electric Cyprus Limited
	 	 	99.86	%
	Private Limited

	 	 	 	Lincoln Electric Cyprus Holdings LLC
	 	 	0.14	%
	 
	 	 	 	 	 	 	 	 
	The Lincoln Electric Company
(Asia Pacific) Pte. Ltd.

	 	Singapore
	 	Lincoln Singapore Holdings LLC
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	The Lincoln Electric Company

(Australia) Proprietary Limited

	 	Australia
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Company of
Canada GP Inc. (to be dissolved)

	 	Ont., Canada
	 	Lincoln Canada International Holdings

LP
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Company of
Canada GP Limited

	 	Ont., Canada
	 	Lincoln Canada Holdings ULC
	 	 	100.00	%






 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	Lincoln Electric Company of Canada LP

	 	Ont., Canada
	 	Lincoln Canada International
Holdings LP
	 	 	99.9	%
	 

	 	 	 	Lincoln Electric Co. of Canada GP
Limited
	 	 	.001	%
	 
	 	 	 	 	 	 	 	 
	The Lincoln Electric Company (New 

Zealand) Limited

	 	New Zealand
	 	The Lincoln Electric Company
(Australia) Pty. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric do Brasil

	 	Brazil
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	37.64	%
	Indústria e Comércio Ltda.

	 	 	 	Lincoln Canada International Holdings
LP
	 	 	62.36	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Cyprus Limited

	 	Cyprus
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Cyprus Holdings 

LLC

	 	Delaware
	 	Lincoln Electric Cyprus Limited
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Dutch Holdings
B.V.

	 	The Netherlands
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Europe B.V.

	 	The
	 	Lincoln Electric Dutch Holdings B.V.
	 	 	99.00	%
	 

	 	Netherlands	 	Lincoln Electric Holdings, Inc.
	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Europe, S.L.

	 	Spain
	 	Lincoln-KD, S.A.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Finance LP

	 	UK
	 	Lincoln Electric Luxembourg S.ar.l.
	 	 	99.00	%
	 

	 	 	 	Lincoln Marquinas Holdings LLC
	 	 	1	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric France S.A.S.

	 	France
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Holdings S.a.r.l.

	 	Luxembourg
	 	Lincoln Electric North America, Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Luxembourg
Holdings S.a.r.l.

	 	Luxembourg
	 	Lincoln Electric Holdings S.a.r.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Italia S.r.l.

	 	Italy
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Japan K.K.

	 	Japan
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Luxembourg
S.ár.l.

	 	Luxembourg
	 	Lincoln Electric Luxembourg
Holdings
S.a.r.l.
	 	 	99.88
	%

	 

	 	 	 	Lincoln Electric France S.A.S.	 	 	0.12	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Manufactura,

	 	Mexico
	 	Lincoln Electric Mexicana, S.A. de C.V.
	 	 	99.99	%
	S.A. de C.V.

	 	 	 	The Lincoln Electric Company
	 	 	0.05	%
	 

	 	 	 	Lincoln Electric International Holding

Company
	 	 	0.05	%






 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	Lincoln Electric Maquinas, S. de

	 	Mexico
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	98	%
	R.L. de C.V.

	 	 	 	Lincoln Maquinas Holdings LLC
	 	 	.021	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Mexicana, S.A.

	 	Mexico
	 	Lincoln Mexico Holdings LLC
	 	 	99.99	%
	de C.V.

	 	 	 	The Lincoln Electric Company
	 	 	0.01	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Mexico Holdings LLC

	 	Delaware
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Norge AS

	 	Norway
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Sverige AB

	 	Sweden
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric UK Holdings 

Limited

	 	England
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric (U.K.) Limited

	 	England
	 	Lincoln Electric UK Holdings Limited
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric Venezuela, C.A.
(Dormant)

	 	Venezuela
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln-KD, S.A.

	 	Spain
	 	Lincoln Electric International Holding

Company
	 	 	83.20	%
	 

	 	 	 	Lincoln Electric Europe B.V.	 	 	16.80	%
	 
	 	 	 	 	 	 	 	 
	Metrode Products Limited

	 	England
	 	Lincoln Electric UK Holdings Limited
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Metrode B.V. Limited

	 	The Netherlands
	 	Metrode Products Limited
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	The Nanjing Lincoln Electric Co.
Ltd.

	 	China
	 	Lincoln Nanjing Holdings LLC
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Nanjing Holdings LLC

	 	Delaware
	 	Lincoln Electric International Holding

Company
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Nova Scotia GP ULC (to be 

dissolved)

	 	Nova Scotia
	 	Lincoln Canada International Holdings

LP
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Smitweld B.V.

	 	The Netherlands
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Soldaduras de Colombia
Ltda.

	 	Colombia
	 	Lincoln Electric International Holding

Company
	 	 	95.00	%
	 

	 	 	 	Lincoln Electric Holdings, Inc.
	 	 	5.00	%
	 
	 	 	 	 	 	 	 	 
	Lincoln Soldaduras de Venezuela,
C.A.

	 	Venezuela
	 	Lincoln Electric Dutch Holdings B.V.
	 	 	100.00	%






 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	Liquidarc Pty. Limited

	 	Australia
	 	The Lincoln Electric Company
(Australia) Pty. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	PT Lincoln Electric Dharma

	 	Indonesia
	 	The Lincoln Electric Company
	 	 	80.00	%
	Indonesia (Dormant)

	 	 	 	(Australia) Pty. Ltd.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	PT Lincoln Electric Indonesia

	 	Indonesia
	 	The Lincoln Electric Company
(Asia Pacific) Pte. Ltd.
	 	 	91.80	%
	 
	 	 	 	 	 	 	 	 
	The Lincoln Electric (Inner

	 	China
	 	The Lincoln Electric Company
	 	 	70.00	%
	Mongolia) Welding Co., Ltd.

	 	 	 	(Asia Pacific) Pte. Ltd.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Lincoln Electric (Shanghai)

	 	China
	 	The Lincoln Electric Company (Asia
	 	 	100	%
	Trading and Warehousing Co., Ltd.
(Dormant)

	 	 	 	Pacific) Pte. Ltd.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	The Shanghai Lincoln Electric Co.
Ltd. (Dormant)

	 	China
	 	The Lincoln Electric Company (Asia
Pacific) Pte. Ltd.
	 	 	90.70	%
	 

	 	 	 	Tenwell Development Pte. Ltd.
	 	 	9.3	%
	 
	 	 	 	 	 	 	 	 
	Tenwell Development Pte. Ltd.

	 	Singapore
	 	The Lincoln Electric Company (Asia
Pacific) Pte. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Jinzhou Jin Tai Welding and Metal
Co. Ltd.

	 	China
	 	Tenwell Development Pte. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Jinzhou Zheng Tai Welding and
Metal Co., Ltd.

	 	China
	 	Tenwell Development Pte. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Tangshan Yitai Automatic Welding
Co., Ltd.

	 	China
	 	Tenwell Development Pte. Ltd.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Electro-Arco, S.A.

	 	Portugal
	 	Lincoln Electric Nova Holdings LLC
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Uhrhan & Schwill 

Schweisstechnik GmbH

	 	Germany
	 	Lincoln Electric Europe B.V.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Vernon Tool Company, Ltd.

	 	Delaware
	 	Lincoln Electric Holdings, Inc.
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Welding Processes UK Limited

(Dormant)

	 	UK
	 	Metrode Products Limited
	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Wytworni Materialow Spawalniczych
Spawmet Sp. z o.o

	 	Poland
	 	Lincoln Electric Luxembourg S.ár.l.
	 	 	100.00	%






 









 





	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Parent Company	 	Percentage
Ownership
	Lincoln Electric
(Gibraltar) Limited (in
the process of
dissolution)

	 	Gibraltar
	 	Lincoln Electric International Holding Company	 	 	100	%







 









 








SCHEDULE 10.3




LITIGATION; PROCEEDINGS



Cross-reference is hereby made to the description of litigation contained in Holdings’ annual
report on Form 10-K for the fiscal year ended December 31, 2008 and quarterly report on Form 10-Q
for the quarter ended September 30, 2009.





 









 








AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of November 18, 2009




by and among




LINCOLN ELECTRIC HOLDINGS, INC.,

and certain of its Subsidiaries, as Borrowers




THE FINANCIAL INSTITUTIONS

PARTY THERETO, as Lenders




KEYBANK NATIONAL ASSOCIATION,

in its capacities as Letter of Credit Issuer and Administrative Agent

for the Lenders





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	PAGE
	
ARTICLE 1
DEFINITIONS
	 
	 	 	 	 	 	 
	Section 1.1

	 	Definitions
	 	 	2	 
	Section 1.2

	 	Computation of Time Periods
	 	 	24	 
	Section 1.3

	 	Accounting Terms
	 	 	24	 
	Section 1.4

	 	Restatement of Existing Credit Agreement
	 	 	24	 
	 
	 	 	 	 	 	 
	
ARTICLE 2
AMOUNT AND NATURE OF CREDIT
	Section 2.1

	 	Amount and Nature of Credit
	 	 	25	 
	Section 2.2

	 	Purpose of Facility
	 	 	25	 
	 
	 	 	 	 	 	 
	
ARTICLE 3
LOANS
	Section 3.1

	 	Revolving Credit Loans
	 	 	25	 
	Section 3.2

	 	Optional Reductions; Termination of Commitments
	 	 	29	 
	Section 3.3

	 	Repayments and Prepayments; Prepayment Compensation
	 	 	30	 
	Section 3.4

	 	Fees
	 	 	33	 
	Section 3.5

	 	Interest
	 	 	34	 
	Section 3.6

	 	Payments and Computations
	 	 	36	 
	Section 3.7

	 	Reserves; Taxes; Indemnities
	 	 	37	 
	Section 3.8

	 	Capital Adequacy
	 	 	38	 
	Section 3.9

	 	Taxes
	 	 	40	 
	Section 3.10

	 	No Waiver; Reimbursement Limitation
	 	 	42	 
	Section 3.11

	 	Lender’s Obligation to Mitigate; Replacement of Lenders
	 	 	44	 
	Section 3.12

	 	Optional Increase of Commitments
	 	 	44	 
	 
	 	 	 	 	 	 
	
ARTICLE 4
PRO RATA TREATMENT
	Section 4.1

	 	Pro Rata Treatment 44	 	 	 	 
	 
	 	 	 	 	 	 
	
ARTICLE 5
LETTERS OF CREDIT
	Section 5.1

	 	Letters of Credit
	 	 	45	 
	Section 5.2

	 	Letter of Credit Issuer Relationship with Lenders
	 	 	45	 






1









 






	 	 	 	 	 	 	 
	Section 5.3

	 	Resignation and Removal of Letter of Credit Issuer
	 	 	47	 
	Section 5.4

	 	Defaulting Lender
	 	 	48	 






ARTICLE 6

OPENING COVENANTS; CONDITIONS TO RESTATEMENT DATE




	 	 	 	 	 	 	 
	Section 6.1
	 	Opening Covenants 	 	 	48	 
	Section 6.2
	 	Prior to Restatement Date 	 	 	49	 






ARTICLE 7

CONDITIONS TO ALL CREDIT EVENTS




	 	 	 	 	 	 	 
	Section 7.1
	 	Representation Bringdown 	 	 	50	 
	Section 7.2
	 	Compliance with Agreement 	 	 	50	 
	Section 7.3
	 	No Material Adverse Change 	 	 	50	 






ARTICLE 8

AFFIRMATIVE COVENANTS




	 	 	 	 	 	 	 
	Section 8.1
	 	Financial Statements 	 	 	50	 
	Section 8.2
	 	Notice 	 	 	52	 
	Section 8.3
	 	Insurance 	 	 	53	 
	Section 8.4
	 	Money Obligations 	 	 	53	 
	Section 8.5
	 	Records 	 	 	53	 
	Section 8.6
	 	Franchises 	 	 	54	 
	Section 8.7
	 	Certain Subsidiaries to Join as Borrower 	 	 	54	 
	Section 8.8
	 	Most Favored Covenant Status 	 	 	54	 
	Section 8.9
	 	Compliance with Laws 	 	 	54	 
	Section 8.10
	 	Properties 	 	 	55	 
	Section 8.11
	 	Use of Proceeds 	 	 	55	 
	Section 8.12
	 	Anti-Terrorism Laws 	 	 	55	 






ARTICLE 9

NEGATIVE COVENANTS




	 	 	 	 	 	 	 
	Section 9.1
	 	ERISA Compliance 	 	 	55	 
	Section 9.2
	 	Investments 	 	 	56	 
	Section 9.3
	 	Mergers; Acquisitions; Bulk Transfers 	 	 	56	 
	Section 9.4
	 	Liens 	 	 	58	 
	Section 9.5
	 	Transactions with Affiliates 	 	 	60	 
	Section 9.6
	 	Change in Nature of Business, Name 	 	 	60	 
	Section 9.7
	 	Fixed Charges Coverage 	 	 	60	 
	Section 9.8
	 	Total Leverage Ratio 	 	 	60	 
	Section 9.9
	 	Distributions 	 	 	61	 






2









 






ARTICLE 10

REPRESENTATIONS AND WARRANTIES




	 	 	 	 	 	 	 
	Section 10.1
	 	Existence; Subsidiaries 	 	 	61	 
	Section 10.2
	 	Power, Authorization and Consent; Enforceability 	 	 	61	 
	Section 10.3
	 	Litigation; Proceedings 	 	 	62	 
	Section 10.4
	 	ERISA Compliance 	 	 	62	 
	Section 10.5
	 	Financial Condition 	 	 	63	 
	Section 10.6
	 	Solvency 	 	 	63	 
	Section 10.7
	 	Default 	 	 	63	 
	Section 10.8
	 	Lawful Operations 	 	 	63	 
	Section 10.9
	 	Investment Company Act Status 	 	 	63	 
	Section 10.10
	 	Regulation G/Regulation U/Regulation X Compliance 	 	 	64	 
	Section 10.11
	 	Title to Properties 	 	 	64	 
	Section 10.12
	 	Intellectual Property 	 	 	64	 
	Section 10.13
	 	Anti-Terrorism Laws 	 	 	64	 
	Section 10.14
	 	Full Disclosure 	 	 	65	 






ARTICLE 11

EVENTS OF DEFAULT




	 	 	 	 	 	 	 
	Section 11.1
	 	Payments 	 	 	65	 
	Section 11.2
	 	Covenants 	 	 	65	 
	Section 11.3
	 	Warranties 	 	 	66	 
	Section 11.4
	 	Cross Default 	 	 	66	 
	Section 11.5
	 	Termination of Plan or Creation of Withdrawal Liability 	 	 	66	 
	Section 11.6
	 	Validity of Agreements 	 	 	67	 
	Section 11.7
	 	Solvency of Borrowers 	 	 	67	 
	Section 11.8
	 	Judgments 	 	 	67	 






ARTICLE 12

REMEDIES UPON DEFAULT




	 	 	 	 	 	 	 
	Section 12.1
	 	Optional Defaults 	 	 	68	 
	Section 12.2
	 	Automatic Defaults 	 	 	68	 
	Section 12.3
	 	Offsets 	 	 	68	 
	Section 12.4
	 	Equalization of Advantage 	 	 	69	 
	Section 12.5
	 	Application of Remedy Proceeds 	 	 	69	 






ARTICLE 13

THE AGENT




	 	 	 	 	 	 	 
	Section 13.1
	 	The Agent 	 	 	70	 
	Section 13.2
	 	Nature of Appointment 	 	 	70	 
	Section 13.3
	 	KeyBank as a Lender; Other Transactions 	 	 	70	 
	Section 13.4
	 	Instructions from Lenders 	 	 	70	 






3









 






	 	 	 	 	 	 	 
	Section 13.5
	 	Lenders’ Diligence 	 	 	71	 
	Section 13.6
	 	No Implied Representations 	 	 	71	 
	Section 13.7
	 	Sub-Agents 	 	 	71	 
	Section 13.8
	 	Agent’s Diligence 	 	 	71	 
	Section 13.9
	 	Notice of Default 	 	 	71	 
	Section 13.10
	 	Agent’s Liability 	 	 	71	 
	Section 13.11
	 	Compensation 	 	 	72	 
	Section 13.12
	 	Agent’s Indemnity 	 	 	72	 
	Section 13.13
	 	Resignation 	 	 	73	 
	Section 13.14
	 	Lender Purpose 	 	 	73	 
	Section 13.15
	 	No Reliance on Agent’s Customer Identification Program 	 	 	74	 






ARTICLE 14

ASSIGNMENTS AND PARTICIPATIONS




	 	 	 	 	 	 	 
	Section 14.1
	 	Assignments 	 	 	74	 
	Section 14.2
	 	Participations 	 	 	75	 
	Section 14.3
	 	Permitted Pledges 	 	 	76	 
	Section 14.4
	 	Furnishing of Borrower Information 	 	 	76	 






ARTICLE 15

MISCELLANEOUS




	 	 	 	 	 	 	 
	Section 15.1
	 	Amendments, Consents 	 	 	76	 
	Section 15.2
	 	No Waiver; Cumulative Remedies 	 	 	77	 
	Section 15.3
	 	Notices 	 	 	77	 
	Section 15.4
	 	Costs and Expenses 	 	 	78	 
	Section 15.5
	 	Obligations Several 	 	 	80	 
	Section 15.6
	 	Execution in Counterparts 	 	 	80	 
	Section 15.7
	 	Binding Effect; Assignment 	 	 	80	 
	Section 15.8
	 	Governing Law 	 	 	80	 
	Section 15.9
	 	Severability of Provisions; Captions 	 	 	80	 
	Section 15.10
	 	Entire Agreement 	 	 	81	 
	Section 15.11
	 	Confidentiality 	 	 	81	 
	Section 15.12
	 	Jury Trial Waiver 	 	 	81	 
	Section 15.13
	 	Jurisdiction; Venue; Inconvenient Forum 	 	 	82	 
	Section 15.14
	 	USA Patriot Act 	 	 	82	 
	Section 15.51
	 	Replacement of Lenders 	 	 	83	 






ARTICLE 16

JOINT AND SEVERAL




	 	 	 	 	 	 	 
	Section 16.1
	 	Joint and Several 	 	 	83	 
	Section 16.2
	 	Obligations Absolute 	 	 	84	 
	Section 16.3
	 	Limitations 	 	 	84	 






4









 






EXHIBITS




Exhibit A Form of Revolving Credit Note

Exhibit B Form of Notice of Borrowing

Exhibit C Form of Rate Conversion/Continuation Request

Exhibit D Form of Reduction Notice

Exhibit E Form of Certificate of Financial Officer

Exhibit F Form of Assignment Agreement

Exhibit G Form of Administrative Questionnaire




SCHEDULES




	 	 	 
	Schedule 1

	 	Addresses
	Schedule 9.2

	 	Existing Investments
	Schedule 9.4

	 	Existing Liens
	Schedule 10.1

	 	Existing Subsidiaries
	Schedule 10.3

	 	Litigation







5