exv10w1



 





Exhibit 10.1




 


CREDIT AGREEMENT




by and among




RPM INTERNATIONAL INC.,

RPM LUX HOLDCO S.Á. R.L.,

RPOW UK LIMITED,

RPM EUROPE HOLDCO B.V.,

RPM CANADA




and




The Other Foreign Borrowers

From Time to Time Party Hereto,

as the Borrowers,




The Lenders From Time to Time Party Hereto,

as the Lenders,




NATIONAL CITY BANK,

as the Administrative Agent, the Swing Line Lender,

an LC Issuer, a Joint Lead Arranger and a Joint Book Runner,




KEYBANK NATIONAL ASSOCIATION,

as the Syndication Agent, a Joint Lead Arranger

and a Joint Book Runner,




WACHOVIA BANK, N.A.,

as Co-Documentation Agent,




BANK OF AMERICA, N.A.,

as Co-Documentation Agent,




and




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., CHICAGO BRANCH

as Co-Documentation Agent




Dated as of December 29, 2006




 





 









 





	 	 	 	 	 
	SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS
	 	 	8	 
	1.01 Certain Defined Terms
	 	 	8	 
	1.02 Accounting Terms and Determinations
	 	 	30	 
	1.03 Terms Generally
	 	 	31	 
	1.04 Currency Equivalents
	 	 	31	 
	1.05 Letter of Credit Amounts
	 	 	31	 
	SECTION 2. COMMITMENTS
	 	 	32	 
	2.01 Loans and Letters of Credit
	 	 	32	 
	(a)Revolving Loans
	 	 	32	 
	(b)Canadian Revolving Loans
	 	 	32	 
	(c)Swing Line Facility
	 	 	32	 
	(i)Swing Loans
	 	 	32	 
	(ii)Swing Loan Refunding
	 	 	33	 
	(iii)Swing Loan Participation
	 	 	34	 
	(iv)Obligations Unconditional
	 	 	35	 
	(d)Revolving Letters of Credit
	 	 	35	 
	(i)LC Issuances
	 	 	35	 
	(ii)LC Requests
	 	 	36	 
	(iii)Auto-Renewal Letters of Credit
	 	 	36	 
	(iv)Applicability of ISP98 and UCP
	 	 	36	 
	(v)Notice of LC Issuance
	 	 	37	 
	(vi)Reimbursement Obligations
	 	 	37	 
	(vii)LC Participations
	 	 	38	 
	(viii)Existing Letters of Credit
	 	 	40	 
	(e)Canadian Letters of Credit
	 	 	40	 
	(i)LC Issuances
	 	 	40	 
	(ii)LC Requests
	 	 	41	 
	(iii)Auto-Renewal Letters of Credit
	 	 	41	 
	(iv)Applicability of ISP98 and UCP
	 	 	42	 
	(v)Notice of LC Issuance
	 	 	42	 
	(vi)Reimbursement Obligations
	 	 	42	 
	(vii)LC Participations
	 	 	43	 
	2.02 Adjustment of Commitments
	 	 	45	 






1









 






	 	 	 	 	 
	(a)Mandatory Termination
	 	 	45	 
	(b)Optional Reductions
	 	 	45	 
	(c)Additional Revolving Commitments
	 	 	46	 
	(d)Additional Canadian Commitments
	 	 	46	 
	2.03 Fees
	 	 	47	 
	(a)Facility Fees
	 	 	47	 
	(b)[Intentionally Deleted]
	 	 	48	 
	(c)Acceptance Fees
	 	 	48	 
	(d)LC Fees for Revolving Letters of Credit
	 	 	48	 
	(i)Standby Letters of Credit
	 	 	48	 
	(ii)Commercial Letters of Credit
	 	 	48	 
	(iii)Fronting Fees
	 	 	49	 
	(iv)Additional Charges of LC Issuers
	 	 	49	 
	(e)LC Fees for Canadian Letters of Credit
	 	 	49	 
	(i)Standby Letters of Credit
	 	 	49	 
	(ii)Commercial Letters of Credit
	 	 	49	 
	(iii)Fronting Fees
	 	 	49	 
	(iv)Additional Charges of LC Issuers
	 	 	50	 
	(f)Arranger Fees
	 	 	50	 
	(g)Computations of Fees
	 	 	50	 
	2.04 Lending Offices
	 	 	50	 
	2.05 Several Obligations
	 	 	50	 
	2.06 Notes
	 	 	50	 
	2.07 Use of Proceeds
	 	 	51	 
	2.08 Authority of Company; Liability of Foreign Borrowers
	 	 	51	 
	(a)Authority of the Company
	 	 	51	 
	(b)Liability of Foreign Borrowers
	 	 	51	 
	2.09 Eligibility and Addition/Release of Foreign Borrowers
	 	 	52	 
	(a)[Intentionally Deleted]
	 	 	52	 
	(b)Eligibility of Foreign Subsidiaries
	 	 	52	 
	(c)Notification to Lenders
	 	 	52	 
	(d)Release of Foreign Borrowers
	 	 	52	 
	SECTION 3. BORROWINGS, CONVERSIONS AND PREPAYMENTS
	 	 	53	 






2









 






	 	 	 	 	 
	3.01 Borrowings
	 	 	53	 
	(a)Loans
	 	 	53	 
	(b)Funding of Loans
	 	 	53	 
	(c)Minimum Borrowing Amount
	 	 	54	 
	(d)Maximum Borrowings
	 	 	54	 
	3.02 Prepayments and Conversions
	 	 	54	 
	(a)Optional Prepayments and Conversions
	 	 	54	 
	(b)Mandatory Prepayments; Cash Collateralization
	 	 	55	 
	(c)Breakage and Other Compensation
	 	 	56	 
	SECTION 4. PAYMENTS OF PRINCIPAL AND INTEREST
	 	 	56	 
	4.01 Repayment of Loans
	 	 	56	 
	4.02 Interest
	 	 	56	 
	SECTION 5. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC
	 	 	57	 
	5.01 Payments
	 	 	57	 
	5.02 Pro Rata Treatment
	 	 	58	 
	(a)Revolving Loans
	 	 	58	 
	(b)Canadian Revolving Loans
	 	 	59	 
	(c)Swing Loans
	 	 	59	 
	5.03 Computations
	 	 	59	 
	5.04 No Setoff, Counterclaim or Defense
	 	 	59	 
	5.05 Certain Notices
	 	 	59	 
	5.06 Non-Receipt of Funds by the Administrative Agent
	 	 	60	 
	5.07 Sharing of Payments, Etc
	 	 	61	 
	(a)Generally
	 	 	61	 
	(b)Recovery of Amounts
	 	 	61	 
	(c)Sharing after Sharing Date
	 	 	62	 
	(d)Consent of Borrowers
	 	 	62	 
	5.08 Taxes
	 	 	62	 
	SECTION 6. YIELD PROTECTION AND ILLEGALITY
	 	 	64	 
	6.01 Additional Costs
	 	 	64	 
	6.02 Limitation on Types of Loans
	 	 	65	 
	6.03 Illegality
	 	 	66	 
	6.04 Substitute Base Rate Loans
	 	 	66	 






3









 






	 	 	 	 	 
	6.05 Compensation
	 	 	66	 
	6.06 Capital Adequacy
	 	 	67	 
	6.07 Substitution of Lender
	 	 	67	 
	SECTION 7. CONDITIONS PRECEDENT
	 	 	67	 
	7.01 Initial Loans
	 	 	67	 
	(a)Organizational Documents
	 	 	67	 
	(b)Incumbency
	 	 	68	 
	(c)Notes
	 	 	68	 
	(d)Opinion of Counsel to the Borrowers
	 	 	68	 
	(e)Counterparts
	 	 	68	 
	(f)Existing Credit Agreement
	 	 	68	 
	(g)Fees and Fee Letters
	 	 	68	 
	(h)Other Documents
	 	 	68	 
	7.02 Initial and Subsequent Loans
	 	 	68	 
	7.03 Conditions Precedent to Addition of Foreign Borrowers
	 	 	69	 
	(a)Joinder Agreement
	 	 	69	 
	(b)Notes
	 	 	69	 
	(c)Corporate Resolutions and Approvals
	 	 	69	 
	(d)Incumbency Certificates
	 	 	69	 
	(e)Organizational Documents
	 	 	69	 
	(f)Opinions of Counsel
	 	 	69	 
	(g)Amendments to Loan Documents
	 	 	70	 
	(h)Miscellaneous
	 	 	70	 
	SECTION 8. REPRESENTATIONS AND WARRANTIES
	 	 	70	 
	8.01 Corporate Existence
	 	 	70	 
	8.02 Information
	 	 	70	 
	8.03 Litigation
	 	 	71	 
	8.04 No Breach
	 	 	71	 
	8.05 Corporate Action
	 	 	71	 
	8.06 Approvals
	 	 	72	 
	8.07 Regulations U and X
	 	 	72	 
	8.08 ERISA
	 	 	72	 
	8.09 Taxes
	 	 	72	 






4









 






	 	 	 	 	 
	8.10 Subsidiaries
	 	 	72	 
	8.11 Investment Company Act
	 	 	72	 
	8.12 [Intentionally Deleted.]
	 	 	72	 
	8.13 Ownership and Use of Properties
	 	 	73	 
	8.14 Environmental Matters
	 	 	73	 
	8.15 Anti-Terrorism Law Compliance
	 	 	73	 
	SECTION 9. COVENANTS
	 	 	73	 
	9.01 Information
	 	 	73	 
	9.02 Taxes and Claims
	 	 	75	 
	9.03 Insurance
	 	 	75	 
	9.04 Maintenance of Existence; Conduct of Business
	 	 	75	 
	9.05 Maintenance of and Access to Properties
	 	 	76	 
	9.06 Compliance with Applicable Laws
	 	 	76	 
	9.07 Litigation
	 	 	76	 
	9.08 Leverage Ratio
	 	 	76	 
	9.09 Interest Coverage Ratio
	 	 	76	 
	9.10 Mergers, Asset Dispositions, Etc
	 	 	76	 
	9.11 Liens
	 	 	77	 
	9.12 Investments
	 	 	78	 
	9.13 Transactions with Affiliates
	 	 	78	 
	9.14 Lines of Business
	 	 	78	 
	9.15 Environmental Matters
	 	 	78	 
	9.16 Lease Payments
	 	 	79	 
	9.17 Anti-Terrorism Laws
	 	 	79	 
	SECTION 10. DEFAULTS
	 	 	79	 
	10.01 Events of Default
	 	 	79	 
	10.02 Application of Certain Payments and Proceeds
	 	 	82	 
	(a)Obligations Generally
	 	 	82	 
	(b)Foreign Revolving Borrower Obligations
	 	 	83	 
	(c)Canadian Obligations
	 	 	83	 
	SECTION 11. THE ADMINISTRATIVE AGENT
	 	 	84	 
	11.01 Appointment, Powers and Immunities
	 	 	84	 
	11.02 Reliance by Administrative Agent
	 	 	85	 






5









 






	 	 	 	 	 
	11.03 Defaults
	 	 	85	 
	11.04 Rights as a Lender
	 	 	85	 
	11.05 Indemnification
	 	 	85	 
	11.06 Non-Reliance on Administrative Agent and Other Lenders
	 	 	86	 
	11.07 Failure to Act
	 	 	86	 
	11.08 Resignation or Removal of Administrative Agent
	 	 	86	 
	11.09 Other Agents
	 	 	87	 
	11.10 USA Patriot Act
	 	 	87	 
	SECTION 12. GUARANTY
	 	 	87	 
	12.01 Guaranty by the Company
	 	 	87	 
	12.02 Additional Undertaking
	 	 	88	 
	12.03 Guaranty Unconditional
	 	 	88	 
	12.04 Company Obligations to Remain in Effect; Restoration
	 	 	89	 
	12.05 Waiver of Acceptance, etc
	 	 	89	 
	12.06 Subrogation
	 	 	89	 
	12.07 Effect of Stay
	 	 	89	 
	SECTION 13. MISCELLANEOUS
	 	 	89	 
	13.01 Waiver
	 	 	89	 
	13.02 Notices
	 	 	89	 
	13.03 Expenses, Etc
	 	 	90	 
	13.04 Indemnification
	 	 	90	 
	13.05 Amendments, Etc
	 	 	91	 
	13.06 Successors and Assigns
	 	 	91	 
	13.07 Confidentiality
	 	 	94	 
	13.08 Limitations on Liability of the LC Issuers
	 	 	94	 
	13.09 Canadian Interest Limitation
	 	 	95	 
	13.10 Judgment Currency
	 	 	95	 
	13.11 Survival
	 	 	96	 
	13.12 Captions
	 	 	96	 
	13.13 Counterparts; Integration
	 	 	96	 
	13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL
	 	 	96	 






6









 






SCHEDULES




	 	 	 	 	 
	SCHEDULE 1

	 	-
	 	Commitments
	SCHEDULE 2

	 	-
	 	Subsidiaries and Joint Ventures
	SCHEDULE 3

	 	-
	 	Existing Letters of Credit






EXHIBITS




	 	 	 	 	 
	EXHIBIT A-1

	 	-
	 	Form of Revolving Note
	EXHIBIT A-2

	 	 	 	Form of Swing Line Note
	EXHIBIT A-3

	 	-
	 	Form of Canadian Base Rate Note
	EXHIBIT A-4

	 	-
	 	Form of BA Equivalent Note
	EXHIBIT B

	 	 	 	Form of Assignment Agreement






7









 






     This CREDIT AGREEMENT (“Agreement”), dated as of December 29, 2006, is entered into by
and among RPM INTERNATIONAL INC., a Delaware corporation (together with its successors and assigns,
the “Company”), RPM LUX HOLDCO S.Á. R.L., a limited liability company formed under the laws
of Luxembourg (“RPM Lux”), RPOW UK LIMITED, a limited liability company formed under the
laws of England and Wales (“RPOW-UK”), RPM EUROPE HOLDCO B.V., a limited liability company
formed under the laws of The Netherlands (“RPM Europe”), RPM CANADA, a general partnership
registered under the laws of the Province of Ontario (“RPM Canada”), the other Foreign
Borrowers (as hereinafter defined) from time to time party hereto, the lenders from time to time
party hereto (collectively, the “Lenders” and, individually, “Lender”), NATIONAL
CITY BANK, as a joint lead arranger, a joint book runner, the Swing Line Lender (as hereinafter
defined), an LC Issuer (as hereinafter defined), and the administrative agent for the Lenders (in
such capacity, the “Administrative Agent”), KEYBANK NATIONAL ASSOCIATION, as a joint lead
arranger, a joint book runner and the syndication agent, WACHOVIA BANK, N.A., as co-documentation
agent, BANK OF AMERICA, N.A., as co-documentation agent, and THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., CHICAGO BRANCH, as co-documentation agent.



RECITALS:




     (1) The Company has requested that the Lenders, the Swing Line Lender and each LC Issuer
extend credit to the Borrowers (as hereinafter defined) to refinance certain of the Company’s
indebtedness and to provide working capital for the Borrowers and funds for other lawful purposes.



     (2) Subject to and upon the terms and conditions set forth herein, the Lenders, the Swing Line
Lender and each LC Issuer are willing to extend credit and make available to the Borrowers the
credit facilities provided herein.



AGREEMENT:




     In consideration of the premises and the mutual covenants contained herein, the parties hereto
agree as follows:



     SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.



     1.01 Certain Defined Terms. As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1.01 or in other provisions of this Agreement
in the singular to have the same meanings when used in the plural and vice versa):



     “Acceptance Fee” shall mean the fee payable in C$ to each Canadian Lender in respect
of BA Equivalent Loans computed in accordance with Section 2.03(c).



     “Acceptable Insurer” shall mean an insurance company that (i) is a Captive Insurance
Company, (ii) has an A.M. Best rating of “A-” or better and being in a financial size category of
X or larger (as such category is defined as of the date hereof) or (ii) is otherwise acceptable to
the Majority Lenders.



8









 





     “Adjusted Foreign Currency Rate” shall mean with respect to each Interest Period for
any Foreign Currency Loan, (i) the rate per annum equal to the offered rate appearing on the
applicable electronic page of Reuters (or on the appropriate page of any successor to or substitute
for such service, or, if such rate is not available, on the appropriate page of any generally
recognized financial information service, as selected by the Administrative Agent from time to
time) that displays an average British Bankers Association Interest Settlement Rate at
approximately 11:00 A.M. (London time) two Business Days prior to the commencement of such Interest
Period for deposits in the applicable Designated Foreign Currency with a maturity comparable to
such Interest Period, divided (and rounded to the nearest 1/16 of 1%) by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves and without benefit of credits for
proration, exceptions or offsets that may be available from time to time) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation
D (or any successor category of liabilities under Regulation D); provided, however, that in the
event that the rate referred to in clause (i) above is not available at any such time for any
reason, then the rate referred to in clause (i) shall instead be the average (rounded to the
nearest 1/16 of 1%) of the rates, as determined by the Administrative Agent, at which deposits in
the applicable Designated Foreign Currency are offered to prime banks by other prime banks in the
London interbank market at approximately 11:00 A.M. (London time), two Business Days prior to the
commencement of such Interest Period, for contracts that would be entered into at the commencement
of such Interest Period for the same duration as such Interest Period.



     “Administrative Agent” shall have the meaning provided in the first paragraph hereof.



     “Affiliate” shall mean, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such Person and, if such
Person is an individual, any member of the immediate family (including parents, siblings, spouse,
children, stepchildren, nephews, nieces and grandchildren) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such immediate family and any
Person who is controlled by any such member or trust. As used in this definition,
“control” (including, with correlative meanings, “controlled by” and “under
common control with”) shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), provided that, in any event,
any Person which owns directly or indirectly more than 5% of the securities having ordinary voting
power for the election of directors or other governing body of a corporation or more than 5% of the
partnership or other ownership interests of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other Person.



     “Agreement” shall have the meaning provided in the first paragraph hereof.



     “Aggregate Canadian Facility Exposure” shall mean, at any time, the sum of (i) the
Dollar Equivalent of the principal amounts of all Canadian Revolving Loans outstanding at such
time, and (ii) the Dollar Equivalent of the Canadian LC Outstandings at such time.



9









 





     “Aggregate Credit Facility Exposure” shall mean, at any time, the sum of (i) the
Aggregate Revolving Exposure at such time, and (ii) the Aggregate Canadian Facility Exposure at
such time.



     “Aggregate Revolving Exposure” shall mean, at any time, the sum of (i) the Dollar
Equivalent of the principal amounts of all Revolving Loans made by all Lenders and outstanding at
such time, (ii) the Dollar Equivalent of the Revolving LC Outstandings at such time, and (iii) the
Swing Line Facility Exposure.



     “Anti-Terrorism Law” shall mean the USA Patriot Act or any other law pertaining to the
prevention of future acts of terrorism, in each case as such law may be amended from time to time.



     “Applicable BA Discount Rate” shall mean, with respect to each Interest Period for any
BA Equivalent Loan, (i) with respect to any Schedule I Canadian Lender, the CDOR Rate in effect on
the date such BA Equivalent Loan is to be made, and (ii) with respect to any Schedule II/III
Canadian Lender, the rate that is 0.10% per annum in excess of the rate determined pursuant to
clause (i) of this definition in connection with the relevant BA Equivalent Loan.



     “Applicable Facility Fee Rate” means, on any date of determination, a rate that is
determined based upon the S&P Rating, the Moody’s Rating or the Fitch Rating, as follows:



	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Facility
	S&P Rating	 	Moody’s Rating	 	Fitch Rating	 	Fee Rate
	   A– or higher
	 	A3 or higher
	 	A– or higher
	 	6.00 basis points
	       BBB+
	 	Baa1
	 	BBB+
	 	8.00 basis points
	       BBB
	 	Baa2
	 	BBB
	 	10.00 basis points
	       BBB–
	 	Baa3
	 	BBB–
	 	12.50 basis points
	       BB+
	 	Ba1
	 	BB+
	 	17.50 basis points
	Lower than BB+
	 	Lower than Ba1
	 	Lower than BB+
	 	25.00 basis points






     If at any time each Rating Agency issues a different rating or two Rating Agencies issue the
same rating which is different than the other Rating Agency, then the Applicable Facility Fee Rate
shall be determined based on the highest rating at such time; provided, however, that if the
highest such rating is two or more levels above the lowest such rating, then the Applicable
Facility Fee Rate shall be determined based on the intermediate rating at such time. If there is no
S&P Rating and Fitch Rating, then the Applicable Facility Fee Rate shall be determined based on the
Moody’s Rating. If there is no Moody’s Rating and Fitch Rating, then the Applicable Facility Fee
Rate shall be determined based on the S&P Rating. If at any time only two Rating Agencies issue a
rating and there is a difference of two or more rating levels between such Rating Agencies, then
the Applicable Facility Fee Rate shall be determined based on the intermediate rating levels at the
midpoint between the ratings issued by such Rating Agencies at



10









 




such time or, if there is no midpoint, based on the higher intermediate level. If there is
(i) no Moody’s Rating and S&P Rating or (ii) no S&P Rating, Moody’s Rating and Fitch Rating, the
Applicable Facility Fee Rate will be determined by the Lenders (with the Applicable Facility Fee
Rate in effect prior to the determination of the Lenders being the same as the Applicable Facility
Fee Rate in effect at the time such ratings ceased to be in effect), but shall not be higher than
the highest rate per annum indicated therefor in the above table. The S&P Rating, Moody’s Rating
and Fitch Rating in effect on any date for purposes of determining the Applicable Facility Fee Rate
shall be that S&P Rating, Moody’s Rating and Fitch Rating in effect at the close of business on
such date. Each change in the Applicable Facility Fee Rate resulting from a publicly announced
change in the S&P Rating, the Fitch Rating and/or the Moody’s Rating shall be effective during the
period commencing on the date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next change.




     “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
lending office of such Lender (or of an affiliate of such Lender) specified by such Lender from
time to time to the Administrative Agent and the Company as the office by which its Loans of such
Type are to be made and/or issued and maintained, provided that, in respect of a Canadian Lender,
such office shall be located in Canada.



     “Applicable Margin” means, on any date of determination, a rate that is determined,
based upon the S&P Rating, the Moody’s Rating or the Fitch Rating, as follows:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable
	 	 	 	 	 	 	 	 	Margin for Base
	 	 	 	 	 	 	Applicable Margin	 	Rate/ Canadian
	S&P Rating	 	Moody’s Rating	 	Fitch Rating	 	for Fixed Rate Loans	 	Base Rate Loans
	A– or higher

	 	A3 or higher
	 	A– or higher
	 	19.00 basis points
	 	0.0 basis points
	BBB+

	 	Baa1
	 	BBB+
	 	27.00 basis points
	 	0.0 basis points
	BBB

	 	Baa2
	 	BBB
	 	40.00 basis points
	 	0.0 basis points
	BBB-

	 	Baa3
	 	BBB-
	 	52.50 basis points
	 	0.0 basis points
	BB+

	 	BBa1
	 	BB+
	 	67.50 basis points
	 	0.0 basis points
	Lower than BB+

	 	Lower than Ba1
	 	Lower than BB+
	 	100.00 basis points
	 	0.0 basis points






     If at any time each Rating Agency issues a different rating or two Rating Agencies issue the
same rating which is different than the other Rating Agency, then the Applicable Margin shall be
determined based on the highest rating at such time; provided, however, that if the highest such
rating is two or more levels above the lowest such rating, then the Applicable Margin shall be
determined based on the intermediate rating at such time. If there is no S&P Rating and Fitch
Rating, then the Applicable Margin shall be determined based on the Moody’s Rating. If there is no
Moody’s Rating and Fitch Rating, then the Applicable Margin shall be determined based on the S&P
Rating. If at any time only two Rating Agencies issue a rating and
there is a difference of two or more rating levels between such Rating Agencies, then the



11









 




Applicable Margin shall be determined based on the intermediate rating levels at the midpoint
between the ratings issued by such Rating Agencies at such time or, if there is no midpoint, based
on the higher intermediate level. If there is (i) no Moody’s Rating and S&P Rating or (ii) no S&P
Rating, Moody’s Rating and Fitch Rating, the Applicable Margin will be determined by the Lenders
(with the Applicable Margin in effect prior to the determination by the Lenders being the same as
the Applicable Margin in effect at the time such ratings ceased to be in effect), but shall not be
higher than the highest rate per annum indicated therefore in the above table. The S&P Rating,
Moody’s Rating and Fitch Rating in effect on any date for purposes of determining the Applicable
Margin shall be that S&P Rating, Moody’s Rating and Fitch Rating in effect at the close of business
on such date. Each change in the Applicable Margin resulting from a publicly announced change in
the S&P Rating, the Fitch Rating and/or the Moody’s Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next change.




     “Arranger” shall mean each of National City and KeyBank in their capacity as a joint
lead arranger hereunder.



     “Approved Fund” means a fund that is engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of credit and that is administered or
managed by a Lender or an Affiliate of a Lender.



     “Arranger Fee Letter” shall mean the Arranger Fee Letter, dated as of the date hereof,
between the Company and the Arrangers, as the same may from time to time be amended, restated or
otherwise modified.



     “Assignment Agreement” means an Assignment Agreement substantially in the form of
Exhibit B hereto.



     “Augmenting Canadian Lender” shall have the meaning set forth in Section 2.02(d).



     “Augmenting Lender” shall have the meaning set forth in Section 2.02(c).



     “Automatic Swing Loan” shall mean any Swing Loan made by the Swing Line Lender that is
subject to its automatic funding and repayment product.



     “BA Discount Proceeds” shall mean, with respect to any BA Equivalent Loan to be made
by a Canadian Lender on any day, an amount (rounded to the nearest whole Canadian cent, and with
one-half of one Canadian cent being rounded up) calculated on such day by dividing:



     (1) the principal amount of such BA Equivalent Loan; by




     (2) the sum of one plus the product of:




     (i) the Applicable BA Discount Rate (expressed as a decimal) applicable to such BA
Equivalent Loan; and




     (ii) a fraction, the numerator of which is the number of days remaining in the term of
such BA Equivalent Loan and the denominator of which is 365; with such



12









 







product being
rounded up or down to the fifth decimal place and .000005 being rounded up.



     “BA Equivalent Loan” shall mean each Canadian Revolving Loan bearing interest at a
rate based upon the Applicable BA Discount Rate.



     “BA Equivalent Note” shall mean a promissory note executed by the Canadian Borrowers
to evidence the BA Equivalent Loan made by a Canadian Lender, substantially in the form of
Exhibit A-4 hereto.



     “Bankruptcy Code” shall mean the United States Bankruptcy Code, as now or hereafter in
effect, or any successor statute.



     “Base Rate” shall mean, with respect to any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Federal Funds Rate plus 1/2 of 1% or (ii) the
Prime Rate.



     “Base Rate Loan” shall mean a Revolving Loan which bears interest at a rate based upon
the Base Rate.



     “Benefited Creditors” shall mean, with respect to the Company’s obligations pursuant
to Section 12, collectively, the Administrative Agent, the Arrangers, the Lenders, each LC Issuer,
the Swing Line Lenders, and the respective successors and assigns of each of the foregoing.



     “Borrowers” shall mean, collectively, the Company, RPM Lux, RPOW-UK, RPM Europe, and
the other Foreign Borrowers.



     “Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day other than Saturday, Sunday or any other day on which commercial banks in New York,
New York or Cleveland, Ohio are authorized or required by law to close and (ii) with respect to any
matters relating to (A) Eurodollar Loans, any day that is a Business Day described in clause (i)
and that is also a day on which dealings in Dollars are carried on in the London interbank market,
(B) Canadian Revolving Loans, any day that is a Business Day described in clause (i) and that is
also a day on which commercial banks in Toronto, Ontario are not authorized or required by law to
close, and (C) Foreign Currency Loans or Letters of Credit in a Designated Foreign Currency, any
day that is a Business Day described in clause (i) and that is also a day on which commercial banks
are open for international business (including the clearing of currency transfers in the relevant
Designated Foreign Currency) in the principal financial center of the home country of the
applicable Designated Foreign Currency.



     “Calculation Date” shall mean (i) the Closing Date, (ii) the last Business Day of each
month, (iii) each Sharing Date, (iv) each date on which a Foreign Currency Loan and/or Canadian
Revolving Loan is made or requested to be made, (v) each date on which a Letter of Credit
denominated in a Designated Foreign Currency is issued or requested to be issued, (vi) the
Commitment Termination Date or any other date on which a Foreign Currency Loan and/or Canadian
Revolving Loan matures hereunder, and (vii) any additional and more frequent dates as
the Administrative Agent in its sole discretion may, or at the direction of the Majority
Lenders shall, select from time to time.



13









 





     “Canadian Administrative Branch” shall mean, with respect to the Administrative Agent
in its capacity as such, National City Bank, Canada Branch acting as the sub-agent of the
Administrative Agent in accordance with the terms of this Agreement or such other Canadian branch
or affiliate of the Administrative Agent as the Administrative Agent shall have designated in
writing to the Borrowers and the Lenders.



     “Canadian Base Rate” shall mean, for any day, with respect to a Canadian Base Rate
Loan, the greater of (i) the annual rate of interest established from time to time by the Canadian
Administrative Branch of the Administrative Agent as its reference rate then in effect for
determining interest rates on Canadian Dollar denominated commercial loans in Canada, and (ii) the
annual rate of interest equal to the sum of (A) the CDOR Rate on that day for bankers’ acceptances
issued on that day with a term to maturity of one month and (B) 0.50% per annum. Any change in the
reference rate announced by the Canadian Administrative Branch of the Administrative Agent shall
take effect at the opening of business on the day specified in the public announcement of such
change.



     “Canadian Base Rate Loan” shall mean each Canadian Revolving Loan bearing interest at
a rate based upon the Canadian Base Rate in effect from time to time.



     “Canadian Base Rate Note” shall mean a promissory note executed by the Canadian
Borrowers to evidence the Canadian Revolving Loans made by a Canadian Lender, substantially in the
form of Exhibit A-3 hereto.



     “Canadian Borrower” shall mean RPM Canada or any other Foreign Subsidiary organized
under the laws of Canada or any province thereof that becomes a Canadian Borrower pursuant to
Section 2.09(b); provided, however, that a Foreign Revolving Borrower shall not be eligible to be a
Canadian Borrower hereunder.



     “Canadian Commitment” shall mean, with respect to each Canadian Lender, the amount, if
any, set forth opposite such Canadian Lender’s name in Schedule 1 hereto as its “Canadian
Commitment” as the same may be adjusted from time to time pursuant to Section 2.02 and as adjusted
from time to time as a result of assignments to or from such Lender pursuant to Section 13.06.



     “Canadian Commitment Percentage” shall mean, at any time for any Canadian Lender, the
percentage obtained by dividing such Canadian Lender’s Canadian Commitment by the Total Canadian
Commitment; provided, however, that if the Total Canadian Commitment has been terminated, the
Canadian Commitment Percentage for each Canadian Lender shall be determined by dividing such
Canadian Lender’s Canadian Commitment immediately prior to such termination by the Total Canadian
Commitment in effect immediately prior to such termination.



     “Canadian Dollars” or “C$” shall mean the lawful currency of Canada.



     “Canadian Facility” shall mean the credit facility established under Section 2.01(b)
hereof pursuant to the Canadian Commitment of each Canadian Lender; provided, however, that
the Canadian Facility shall not be available to a prospective Canadian Borrower (other than
such Canadian Borrowers as are parties hereto on the Closing Date) unless and until such date, if
any,



14









 







that such Canadian Borrower has become a Foreign Borrower under this Agreement in accordance
with Section 2.09(b).



     “Canadian Facility Exposure” shall mean, for any Canadian Lender at any time, the sum
of (i) the Dollar Equivalent of the principal amount of Canadian Revolving Loans made by such
Canadian Lender and outstanding at such time, and (ii) the Dollar Equivalent of such Canadian
Lender’s share of the Canadian LC Outstandings at such time.



     “Canadian Facility Note” shall mean a BA Equivalent Note or a Canadian Base Rate Note.



     “Canadian LC Commitment Amount” shall mean $10,000,000 (or the Dollar Equivalent
thereof in Canadian dollars).



     “Canadian LC Issuance” shall mean the issuance of any Canadian Letter of Credit by a
LC Issuer for the account of a Canadian Borrower in accordance with the terms of this Agreement and
shall include any amendment thereto that increases the Stated Amount thereof or extends the expiry
date of such Canadian Letter of Credit.



     “Canadian LC Outstandings” shall mean, at any time, the sum, without duplication, of
(i) the Dollar Equivalent of the aggregate Stated Amount of all outstanding Canadian Letters of
Credit and (ii) the Dollar Equivalent of the aggregate amount of all Unpaid Drawings with respect
to Canadian Letters of Credit.



     “Canadian LC Participant” has the meaning provided in Section 2.01(e)(vii).



     “Canadian LC Participation” has the meaning provided in Section 2.01(e)(vii).



     “Canadian LC Request” has the meaning provided in Section 2.01(e)(ii).



     “Canadian Lender” shall mean each Lender that has a Canadian Commitment or, if
applicable, the Canadian Lending Installation of any Lender that has a Canadian Commitment;
provided, however, that (i) if a Canadian Commitment is being provided by a Canadian Lending
Installation of any Lender, then, except as specifically set forth in this Agreement, such Lender
and its Canadian Lending Installation shall constitute a single “Lender” under this Agreement and
the other Loan Documents, provided that, notwithstanding the foregoing, to the extent a Canadian
Commitment is being provided by a Canadian Lending Installation of any Lender, each such Canadian
Lending Installation shall be entitled to all of the benefits, indemnifications and protections set
forth in this Agreement or any other Loan Document, and (ii) no Lender, and no Canadian Lending
Installation of any Lender, may be or become a Canadian Lender hereunder unless such Lender or the
Canadian Lending Installation of such Lender, as the case may be, is a Qualified Canadian Lender.



     “Canadian Lending Installation” shall mean, with respect to any Lender, any office,
branch, subsidiary or Affiliate of such Lender that is designated in writing by such Lender to the
Administrative Agent as being responsible for funding or maintaining a Canadian Commitment
provided, however, that (i) such designation shall not result in withholding tax liability or
other adverse tax consequences or adverse legal impact to the Company or its Subsidiaries, and (ii)
the



15









 







designation by a Lender of a Canadian Lending Installation shall not affect the obligation of
such Lender to make Loans under this Agreement.



     “Canadian Letter of Credit” shall mean any Standby Letter of Credit or Commercial
Letter of Credit issued by a LC Issuer under this Agreement pursuant to Section 2.01(e) for the
account of any Canadian Borrower.



     “Canadian Obligations” shall mean all amounts, indemnities and reimbursement
obligations, direct or indirect, contingent or absolute, of every type or description, and at any
time existing, owing by the Canadian Borrowers to the Administrative Agent. any Canadian Lender or
any LC Issuer pursuant to the terms of this Agreement or any other Loan Document (including, but
not limited to, interest and fees that accrue after the commencement by or against any Borrower of
any insolvency proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding).



     “Canadian Payment Office” shall mean, with respect to all matters relating to the
making and repayment of Canadian Loans, and all interest thereon, the office of the Canadian
Administrative Branch at 130 King Street West, Suite 2140, Toronto, Ontario, Canada M5X 1E4,
Attention: Donna Hallim and Ken Argue (facsimile: (416) 361-0085) or such other office(s) located
in Canada, as the Administrative Agent may designate to the Borrowers in writing from time to time.



     “Canadian Revolving Loan” shall mean a loan made to a Canadian Borrower pursuant to
Section 2.01(b) hereof.



     “Capital Lease Obligations” shall mean, as to any Person, the obligations of such
Person to pay rent or other amounts under a lease of (or other agreement conveying the right to
use) real and/or personal property to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board) and, for
purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP (including such Statement No. 13).



     “Captive Insurance Company” shall mean any of First Colonial Insurance Company, First
Continental Services Company or RSIF International Limited, each of which are wholly-owned
(directly or indirectly) Subsidiaries of the Company, or any other captive insurance company that
is a wholly-owned (directly or indirectly) Subsidiary of the Company.



     “CDOR Rate” shall mean, for any day, the stated average of the rates applicable to C$
bankers’ acceptances for an amount comparable to that for which such rate is being determined and
for a term comparable to that for which such rate is being determined (which, in the case of a BA
Equivalent Loan, shall be the Interest Period applicable thereto) and appearing as at 10:00 A.M.
(Toronto, Ontario time) on the “Reuters Screen CDOR Page” on such date, or if such date is not a
Business Day, then on the immediately preceding Business Day; provided, however, that
if no such rate appears on the Reuters Screen CDOR Page as contemplated, then the CDOR Rate on
any date shall be calculated as the arithmetic mean of the discount rates (calculated on an



16









 







annual
basis) for an amount comparable to that for which such rate is being determined and for the term
referred to above applicable to C$ bankers’ acceptances quoted by the Schedule I Reference Canadian
Lenders as of 10:00 A.M., Toronto time, on such date or, if such date is not a Business Day, then
on the immediately preceding Business Day.



     “CERCLA” shall mean the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, and regulations promulgated thereunder.



     “Closing Date” shall mean the date of the initial Loans hereunder.



     “Closing Fee Letter” shall mean the Closing Fee Letter, dated as of the Closing Date,
between the Company and the Administrative Agent, for the benefit of the Lenders, as the same may
from time to time be amended, restated or otherwise modified.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, or any successor
statute.



     “Commercial Letter of Credit” shall mean any letter of credit or similar instrument
issued for the purpose of providing the primary payment mechanism in connection with the purchase
of materials, goods or services in the ordinary course of business.



     “Commitment” shall mean (i) with respect to each Lender, its obligation to make
Revolving Loans and participate in Revolving LC Issuances pursuant to its Revolving Commitment,
(ii) with respect to each Canadian Lender, its obligation to make Canadian Revolving Loans and
participate in Canadian LC Issuances under the Canadian Facility pursuant to its Canadian
Commitment, (iii) with respect to the Swing Line Lender, its obligations to make Swing Loans under
the Swing Line Facility pursuant to Section 2.01(c), and (iv) with respect to each LC Issuer, its
obligation to issue Letters of Credit under and in accordance with the terms of this Agreement.



     “Commitment Period” shall mean the period from the Closing Date to but not including
the Commitment Termination Date.



     “Commitment Termination Date” shall mean the earlier of (i) December 29, 2011, and
(ii) the date that the Commitments have been terminated pursuant to Section 2.02 or 10.01 hereof;
provided, however, that if the Commitment Termination Date is not a Business Day, the Commitment
Termination Date shall mean the next preceding Business Day.



     “Company” shall have the meaning provided in the first paragraph hereof.



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



     “Credit Facility Exposure” shall mean, for any Lender at any time, the Dollar
Equivalent of the sum of (i) such Lender’s Revolving Exposure at such time; (ii) in the case of the
Swing
Line Lender, (A) if the principal amount of Swing Loans outstanding at such time does not
exceed the Funded Swing Loan Threshold, the principal amount of Swing Loans outstanding at such
time and (B) if the principal amount of Swing Loans outstanding at



17









 







such time exceeds the Funded
Swing Loan Threshold, 50% of the principal amount of Swing Loans outstanding at such time; (iii) in
the case of the Funded Swing Line Participant, if the principal amount of Swing Loans outstanding
at such time exceeds the Funded Swing Loan Threshold, 50% of the principal amount of Swing Loans
outstanding at such time; and (iv) if such Lender is a Canadian Lender (whether directly or through
its Canadian Lending Installation), such Canadian Lender’s Canadian Facility Exposure at such time.



     “Default” shall mean an event which with notice or lapse of time or both would, unless
cured or waived, become an Event of Default.



     “Designated Foreign Currency” shall mean Euros, Canadian Dollars, British pounds and,
additionally, any other currency (other than Dollars) approved in writing by each of the Lenders
and that is freely traded and exchangeable into Dollars.



     “Disclosure Documents” shall mean the Company’s annual report on Form 10-K for the
fiscal year ended May 31, 2006 and quarterly report on Form 10-Q for the quarterly period ended
August 31, 2006, in each case as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.



     “Dollar Equivalent” shall mean, (i) with respect to an amount in Dollars, such amount,
(ii) with respect to any Foreign Currency Loan to be made, the Dollar equivalent of the amount of
such Foreign Currency Loan, determined by the Administrative Agent at approximately 11:00 A.M.
London time on the date that is two Business Days before the date such Foreign Currency Loan is to
be made (unless otherwise indicated by the terms of this Agreement) on the basis of its spot rate
for the purchase of the relevant Designated Foreign Currency with Dollars for delivery on the date
such Foreign Currency Loan is to be made, (iii) with respect to any Letter of Credit to be issued
in any Designated Foreign Currency, the Dollar equivalent of the Stated Amount of such Letter of
Credit, determined by the applicable LC Issuer at approximately 11:00 A.M. London time on the date
that is two Business Days before the issuance of such Letter of Credit (unless otherwise indicated
by the terms of this Agreement) on the basis of its spot rate for the purchase of the relevant
Designated Foreign Currency with Dollars for delivery on such date of issuance, and (iv) with
respect to any other amount, and with respect to Foreign Currency Loans and Letters of Credit
issued in any Designated Foreign Currency at any other time, the Dollar equivalent of such amount,
Foreign Currency Loan or Letter of Credit, as the case may be, determined by the Administrative
Agent or the applicable LC Issuer, as the case may be, at approximately 11:00 A.M. London time on
the date for which the Dollar equivalent amount of such amount or the amount of such Foreign
Currency Loan or Letter of Credit, as the case may be, is being determined (unless otherwise
indicated by the terms of this Agreement) on the basis of its spot rate for the purchase of the
relevant Designated Foreign Currency with Dollars for delivery on such date.



     “Dollars” and “$” shall mean lawful money of the United States of America.



     “Domestic Subsidiary” shall mean any Subsidiary organized under the laws of the United
States of America, any State thereof, or the District of Columbia.



18









 





     “EBITDA” shall mean, for any period, determined on a consolidated basis for the
Company and its Subsidiaries, (i) net income of the Company and its Subsidiaries (calculated before
provision for income taxes, interest expense, extraordinary items, non-recurring gains or losses in
connection with asset dispositions, income attributable to equity in affiliates, all amounts
attributable to depreciation and amortization and non-cash charges associated with asbestos
liabilities) for such period, minus (ii) cash payments made by the Company or any of its
Subsidiaries in respect of asbestos liabilities (which liabilities include, without limitation,
defense costs and indemnification liabilities incurred in connection with asbestos liabilities)
during such period.



     “Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an
Approved Fund, and (iv) any other Person (other than a natural Person) approved by (A) the
Administrative Agent, (B) each LC Issuer, and (C) unless an Event of Default has occurred and is
continuing, the Company (each such approval not to be unreasonably withheld or delayed); provided,
however, that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Company or any of its Subsidiaries.



     “Environmental Laws” shall mean any and all applicable federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders,
decrees, codes, injunctions, permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment or the effect of the environment on
human health or to emissions, discharges or release of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation thereof.



     “Environmental Liabilities” shall mean all liabilities in connection with or relating
to the business, assets, presently or previously owned or leased property, activities (including,
without limitation, off-site disposal) or operations of the Company and each Subsidiary, whether
vested or unvested, contingent or fixed, actual or potential, known or unknown, which arise under
or relate to matters covered by Environmental Laws.



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



     “Eurodollar Base Rate” shall mean, with respect to any Eurodollar Loans, the rate per
annum appearing on the applicable electronic page of Reuters (or on any successor or substitute
page of such service, or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the first day of the Interest Period for such Eurodollar Loans, as
the rate for Dollar deposits for a period comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “Eurodollar Base
Rate” with respect to such Eurodollar Loans for such Interest Period shall be the arithmetic mean,
as calculated by the Administrative Agent, of the respective rates per annum (rounded upwards, if



19









 







necessary, to the nearest 1/16 of 1%) quoted by the Reference Lenders at approximately 11:00 a.m.
London time by the principal London branch of each of the Reference Lenders on the day two Business
Days prior to the first day of the Interest Period for such Loans for the offering to leading banks
in the London interbank market of Dollar deposits in immediately available funds, for a period, and
in an amount, comparable to such Interest Period and the principal amount of the Eurodollar Loan
which shall be made by such Reference Lender and outstanding during such Interest Period. If any
Reference Lender does not furnish a timely quotation, the Administrative Agent shall determine the
relevant interest rate on the basis of the quotation or quotations furnished by the remaining
Reference Lender or Lenders or, if none of such quotations is available on a timely basis, the
provisions of Section 6.02 shall apply.



     “Eurodollar Loan” shall mean a Revolving Loan the interest on which is determined on
the basis of rates referred to in the definition of “Eurodollar Base Rate” in this Section 1.01.



     “Eurodollar Rate” shall mean, for any Eurodollar Loans, a rate per annum determined by
the Administrative Agent to be equal to (i) the Eurodollar Base Rate for such Loans for the
Interest Period for such Loans divided by (ii) 1 minus the Eurodollar Reserve Requirement for such
Loans for such Interest Period.



     “Eurodollar Reserve Requirement” shall mean, for any Eurodollar Loans for any Interest
Period therefor, the average maximum rate at which reserves (including any marginal, supplemental
or emergency reserves) are required to be maintained during such Interest Period under Regulation D
by member banks of the Federal Reserve System in Cleveland, Ohio with deposits exceeding one
billion Dollars against “Eurocurrency liabilities” (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Eurodollar Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks by reason of any Regulatory Change against
(i) any category of liabilities which includes deposits by reference to which the Eurodollar Rate
is to be determined as provided in the definition of “Eurodollar Base Rate” in this Section 1.01 or
(ii) any category of extensions of credit or other assets which include Eurodollar Loans.



     “Event of Default” shall have the meaning assigned to such term in Section 10.01
hereof.



     “Existing Letters of Credit” shall mean each of the letters of credit issued by
National City listed on Schedule 3 hereto.



     “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of Cleveland, Ohio on the Business
Day next succeeding such day, provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate charged to National City on such day on such transactions as determined by
the Administrative Agent.



20









 





     “Fitch” means Fitch Investors Service Inc. and its successors.



     “Fitch Rating” means, on any date of determination, the rating accorded the Company’s
senior unsecured long-term debt by Fitch (or if the Obligations are secured, the rating accorded to
the Company’s senior secured long-term debt by Fitch), or if such rating is unavailable, the
Company’s long-term issuer default rating accorded to it by Fitch.



     “Fixed Rate Loan” shall mean any Eurodollar Loan, Foreign Currency Loan or BA
Equivalent Loan.



     “Foreign Borrower” shall mean any Canadian Borrower or Foreign Revolving Borrower.



     “Foreign Currency Loan” shall mean each Revolving Loan denominated in a Designated
Foreign Currency and bearing interest at a rate based upon the Adjusted Foreign Currency Rate.



     “Foreign Lending Office” shall mean, with respect to each Lender, in the case of
matters relating to the Foreign Revolving Borrowers, the office(s) designated by such Lender to the
Administrative Agent as such Lender’s lending office(s) for purposes of making Loans to each such
Foreign Revolving Borrower.



     “Foreign Revolving Borrower” shall mean RPM Lux, RPOW-UK, RPM Europe, or any other
Foreign Subsidiary that becomes a Revolving Borrower pursuant to Section 2.09(b) hereof; provided,
however, that a Canadian Borrower shall not be eligible to be a Foreign Revolving Borrower
hereunder.



     “Foreign Revolving Borrower Obligations” shall mean all amounts, indemnities and
reimbursement obligations, direct or indirect, contingent or absolute, of every Type or
description, and at any time existing, owing by any Foreign Revolving Borrower to the
Administrative Agent, any Lender or LC Issuer pursuant to the terms of this Agreement or any other
Loan Document (including, but not limited to, interest and fees that accrue after the commencement
by or against any Borrower of any insolvency proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding).



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Funded Swing Line Participant” shall mean KeyBank.



     “Funded Swing Line Participation Amount” shall have the meaning provided in Section
2.01(c)(i).



     “Funded Swing Loan Threshold” shall mean $10,000,000.



     “GAAP” shall mean generally accepted accounting principles as in effect from time to
time in the United States consistently applied.



     “Guaranty” by any Person shall mean any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or



21









 







otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise, other than agreements to purchase goods at an arm’s
length price in the ordinary course of business) or (ii) entered into for the purpose of assuring
in any other manner the holder of such Indebtedness of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part), provided that the term Guaranty shall
not include endorsements for collection or deposit in the ordinary course of business. The term
“Guarantee” used as a verb has a corresponding meaning.



     “Hazardous Substances” shall mean any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or
any substance having constituent elements displaying any of the foregoing characteristics,
regulated under Environmental Laws.



     “Increasing Canadian Lender” shall have the meaning set forth in Section 2.02(d).



     “Increasing Lender” shall have the meaning set forth in Section 2.02(c).



     “Indebtedness” shall mean, as to any Person (determined without duplication): (i)
indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of debt
securities) or for the deferred purchase or acquisition price of property or services, other than
accounts payable incurred in the ordinary course of business; (ii) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by banks and other financial
institutions for the account of such Person (whether or not such obligations are contingent); (iii)
Capital Lease Obligations of such Person; (iv) obligations of such Person to redeem or otherwise
retire shares of capital stock of such Person; (v) indebtedness of others of the type described in
clause (i), (ii), (iii) or (iv) above secured by a Lien on the property of such Person, whether or
not the respective obligation so secured has been assumed by such Person; and (vi) indebtedness of
others of the type described in clause (i), (ii), (iii) or (iv) above Guaranteed by such Person.



     “Interest Expense” shall mean, for any period, the sum (determined without
duplication) of the aggregate amount of interest accruing during such period on Indebtedness of the
Company and its Subsidiaries (on a consolidated basis), including the interest portion of payments
under Capital Lease Obligations and any capitalized interest, and excluding amortization of debt
discount and expense.



     “Interest Period” shall mean, with respect to each Fixed Rate Loan, a period of one,
two, three or six months as selected by the applicable Borrower; provided, however, that (i) the
initial Interest Period for any borrowing of such Fixed Rate Loan shall commence on the date of
such borrowing (the date of a borrowing resulting from a conversion of a Loan into a Fixed Rate
Loan or continuation of a Fixed Rate Loan shall be the date of such conversion or continuation) and
each Interest Period occurring thereafter in respect of such borrowing shall commence on the day
on which the next preceding Interest Period expires; (ii) if any Interest Period begins on a
day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of such calendar month;



22









 







(iii) if any Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day; provided, however, that if any
Interest Period would otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day; (iv) no Interest Period for any Fixed Rate Loan may be selected
that would end after the Commitment Termination Date; and (v) if, upon the expiration of any
Interest Period, the applicable Borrower has failed to (or may not) elect a new Interest Period to
be applicable to the respective borrowing of Fixed Rate Loans as provided above, such Borrower
shall be deemed to have elected to convert such borrowing to Base Rate Loans effective as of the
expiration date of such current Interest Period or, in the case of any Foreign Currency Loan, such
Borrower shall be required to repay the same in full.



     “Investments” shall have the meaning assigned to such term in Section 9.12 hereof.



     “Joinder Agreement” has the meaning provided in Section 7.03(a).



     “KeyBank” shall mean KeyBank National Association and its successors and assigns.



     “LC Documents” shall mean, with respect to any Letter of Credit, any documents
executed in connection with such Letter of Credit, including the Letter of Credit itself.



     “LC Fee” shall mean any of the fees payable pursuant to Section 2.03(d) or (e) in
respect of Letters of Credit.



     “LC Issuance” shall mean any Canadian LC Issuance or Revolving LC Issuance.



     “LC Issuer” shall mean (i) with respect to any Revolving Letter of Credit, National
City or any of its Affiliates, or such other Lender that is requested by the Company and agrees to
be an LC Issuer hereunder and is approved by the Administrative Agent, and (ii) with respect to any
Canadian Letter of Credit, National City Bank, Canada Branch or any of its affiliates that is a
Qualified Canadian Lender or such other Qualified Canadian Lender that is approved by the Company
and agrees to be an LC Issuer hereunder and is approved by the Administrative Agent.



     “LC Obligor” shall mean (i) with respect to any Revolving Letter of Credit, the
Company, any of its Domestic Subsidiaries or any other Revolving Borrower for whose account such
Revolving Letter of Credit is issued, and (ii) with respect to any Canadian Letter of Credit, any
Canadian Borrower or any of the Company’s Subsidiaries organized under the laws of Canada or any
province thereof.



     “Lender” and “Lenders” have the meaning provided in the first paragraph of
this Agreement and includes any other Person that becomes a party hereto pursuant to Section 13.06,
other than any such Person that ceases to be a party hereto pursuant to Section 13.06. Unless the
context otherwise requires, the term “Lenders” includes the Swing Line Lender and the
Funded Swing Line Participant.



     “Lender Register” shall mean a register on or in which the Administrative Agent will
record the names and addresses of the Lenders and the Commitments from time to time of each of the
Lenders.



23









 





     “Letter of Credit” shall mean any Canadian Letter of Credit or any Revolving Letter of
Credit.



     “Lien” shall mean, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, the Company and each of its Subsidiaries shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement relating to such
asset.



     “Liquid Investments” shall mean (i) certificates of deposit maturing within 90 days of
the acquisition thereof denominated in Dollars and issued by (X) a Lender or (Y) a bank or trust
company having combined capital and surplus of at least $500,000,000 and which has (or which is a
Subsidiary of a bank holding company which has) publicly traded debt securities rated A- or higher
by S&P or A3 or higher by Moody’s; (ii) obligations issued or guaranteed by the United States of
America, with maturities not more than one year after the date of issue; (iii) commercial paper
with maturities of not more than 90 days and a published rating of not less than A-1 from S&P or
P-1 from Moody’s; and (iv) municipal and/or corporate bonds rated A or higher from S&P or A2 or
higher from Moody’s.



     “Loan” shall mean any Revolving Loan, Swing Loan or Canadian Revolving Loan.



     “Loan Documents” shall mean this Agreement, the Notes, the Arranger Fee Letter, the
Closing Fee Letter, any Joinder Agreement and any LC Document.



     “Majority Lenders” shall mean, at any time, Lenders whose Revolving Exposure, Canadian
Facility Exposure, unused Revolving Commitments and unused Canadian Commitments constitute at least
51% of the sum of the total Revolving Exposure, Canadian Facility Exposure, unused Revolving
Commitments and unused Canadian Commitments of all Lenders at such time; provided, that, for
purposes of calculating “Majority Lenders,” if the Revolving Commitments and/or Canadian
Commitments have been terminated pursuant to Section 10.01 hereof or expired, then the Revolving
Commitments and/or Canadian Commitments of the Lenders immediately prior to such termination or
expiration shall be used.



     “Material Adverse Effect” shall mean (i) a material adverse effect on the condition
(financial or otherwise), results of operations, properties, assets, liabilities (including,
without limitation, tax and ERISA liabilities and Environmental Liabilities), business, operations,
capitalization, shareholders’ equity, franchises or prospects of the Company and its Subsidiaries,
taken as a whole; or (ii) a material adverse effect on the ability of the Company to perform its
obligations under this Agreement or any Note.



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



     “Moody’s Rating” means, on any date of determination, the rating accorded the
Company’s senior unsecured long-term debt by Moody’s (or if the Obligations are secured, the
rating accorded to the Company’s senior secured long-term debt by Moody’s), or if such rating
is unavailable, the Company’s long-term issuer credit rating accorded to it by Moody’s.



24









 





     “Multiemployer Plan” shall mean at any time an employee pension benefit plan within
the meaning of Section 4001(a)(3) of ERISA to which the Company or any member of the Controlled
Group is then making or accruing an obligation to make contributions or has within the preceding
five plan years made contributions, including for these purposes any Person which ceased to be a
member of the Controlled Group during such five year period.



     “National City” shall mean National City Bank and its successors and assigns.



     “Notes” shall mean the Revolving Notes, the Canadian Facility Notes and the Swing Line
Notes.



     “Notice of Swing Loan Refunding” has the meaning provided in Section 2.01(c)(ii).



     “Obligations” shall mean all amounts, indemnities and reimbursement obligations,
direct or indirect, contingent or absolute, of every type or description, and at any time existing,
owing by any Borrower to the Administrative Agent, any Lender, the Swing Line Lender or LC Issuer
pursuant to the terms of this Agreement or any other Loan Document (including, but not limited to,
interest and fees that accrue after the commencement by or against any Borrower of any insolvency
proceeding, regardless of whether allowed or allowable in such proceeding or subject to an
automatic stay under Section 362(a) of the Bankruptcy Code).



     “Organizational Documents” shall mean, with respect to any Person (other than an
individual), such Person’s Articles (Certificate) of Incorporation, or equivalent formation
documents, and Regulations (Bylaws), or equivalent governing documents, and any amendments to any
of the foregoing.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.



     “Person” shall mean an individual, a corporation, a company, a voluntary association,
a partnership, a trust, an unincorporated organization or a government or any agency,
instrumentality or political subdivision thereof.



     “Plan” shall mean an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and either (i) is maintained or contributed to, by the Company or any member of the
Controlled Group for employees of the Company or any member of the Controlled Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by the Company or any
Person which was at such time a member of the Controlled Group for employees of any Person which
was at such time a member of the Controlled Group.



     “Post-Default Rate” shall mean, in respect of any principal of any Loan, Unpaid
Drawing or any other amount payable by any Borrower under this Agreement, a rate per annum equal to
the sum of 2% plus the higher of (i) the Base Rate as in effect from time to time and (ii) in
the case of any Loan, the rate of interest (if any) otherwise applicable to such Loan.




25









 





     “Prime Rate” shall mean the rate of interest from time to time announced by
National City at the Principal Office as its prime commercial lending rate. Each change in the
interest rate provided for herein resulting from a change in the Prime Rate shall take effect at
the time of such change in the Prime Rate.



     “Principal Office” shall mean, with respect to all matters other than those relating
to the repayment of Canadian Revolving Loans, Canadian LC Issuances or other Canadian Obligations,
the office of the Administrative Agent at 629 Euclid Avenue, Locator 01-3028, Cleveland, Ohio
44114, Attention: Agent Services (facsimile: (216) 222-0103), or such other office(s), as the
Administrative Agent may designate to the Company in writing from time to time.



     “Purchase Date” has the meaning provided in Section 2.01(c)(iii).



     “Qualified Canadian Lender” means any Lender who is either (i) resident in Canada for
the purpose of the Income Tax Act (Canada) or (ii) an “authorized foreign bank”, as defined in
section 2 of the Bank Act (Canada) and Section 248 of the Income Tax Act (Canada), which holds all
loans to the Canadian Borrowers hereunder as part of its “Canadian banking business”, for purposes
of the Income Tax Act (Canada), with the result that such Lender is deemed to be resident in Canada
for the purposes of Part XIII of the Income Tax Act (Canada), in respect of any amount paid or
credited or to be paid or credited to that Lender under this Agreement.



     “Quarterly Dates” shall mean the last Business Day of each March, June, September and
December.



     “Rating Agency” means any of Fitch, Moody’s or S&P.



     “Receivables” shall mean all accounts receivable of the Company or any of its
Subsidiaries (including any thereof constituting or evidenced by accounts, chattel paper,
instruments or general intangibles), and rights (contractual and other) and collateral related
thereto and all proceeds thereof.



     “Receivables Subsidiary” shall mean any special purpose, bankruptcy remote Subsidiary
of the Company that acquires, on a revolving or evergreen basis, Receivables generated by the
Company or any of its Subsidiaries and that engages in no operations or activities other than those
related to receivables securitizations.



     “Reference Lenders” shall mean each of National City and KeyBank.



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



     “Regulatory Change” shall mean, with respect to any Lender, any change on or after the
date of this Agreement in United States federal, state or foreign laws or regulations (including
Regulation D) or the adoption or making on or after such date of any interpretations, directives or
requests applying to a class of lenders including such Lender of or under any United States federal
or state, or any foreign, laws or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the interpretation or
administration thereof.



26









 





     “Release” shall mean any discharge, emission or release, including a “RELEASE” as
defined in CERCLA at 42 U.S.C. Section 9601(22). The term “Released” shall have a corresponding
meaning.



     “Revolving Borrower” shall mean the Company or any Foreign Revolving Borrower.



     “Revolving Commitment” shall mean, with respect to each Lender, the amount set forth
opposite such Lender’s name in Schedule 1 hereto as its “Revolving Commitment” as the same
may be adjusted from time to time pursuant to Section 2.02 or as a result of assignments to or from
such Lender pursuant to Section 13.06.



     “Revolving Exposure” shall mean, for any Lender at any time, the Dollar Equivalent of
the sum of (i) the principal amount of Revolving Loans made by such Lender and outstanding at such
time, and (ii) such Lender’s share of the Revolving LC Outstandings at such time.



     “Revolving LC Commitment Amount” shall mean the Dollar Equivalent of $25,000,000.



     “Revolving LC Issuance” shall mean the issuance of any Revolving Letter of Credit by
an LC Issuer for the account of the Company or any Revolving Borrower in accordance with the terms
of this Agreement, and shall include any amendment thereto that increases the Stated Amount thereof
or extends the expiry date of such Revolving Letter of Credit.



     “Revolving LC Outstandings” shall mean, at any time, the sum, without duplication, of
(i) the Dollar Equivalent of the aggregate Stated Amount of all outstanding Revolving Letters of
Credit and (ii) the Dollar Equivalent of the aggregate amount of all Unpaid Drawings with respect
to Revolving Letters of Credit.



     “Revolving LC Participant” has the meaning provided in Section 2.01(d)(vii).



     “Revolving LC Participation” has the meaning provided in Section 2.01(d)(vii).



     “Revolving LC Request” has the meaning provided in Section 2.01(d)(ii).



     “Revolving Letter of Credit” shall mean (i) any Standby Letter of Credit or Commercial
Letter of Credit, in each case issued by an LC Issuer under this Agreement pursuant to Section
2.01(d), or (ii) any Existing Letter of Credit.



     “Revolving Loan” shall mean a loan made to a Revolving Borrower pursuant to Section
2.01(a) hereof.



     “Revolving Note” shall mean a promissory note substantially in the form of Exhibit
A-1 hereto.



     “Revolving Percentage” shall mean, at any time for any Lender, the percentage obtained
by dividing such Lender’s Revolving Commitment by the Total Revolving Commitment,
provided, however, that if the Total Revolving Commitment has been terminated, the Revolving
Percentage for each Lender shall be determined by dividing such Lender’s Revolving Commitment
immediately prior to such termination by the Total Revolving Commitment



27









 







immediately prior to such termination. The Revolving Percentage of each Lender as of the Closing Date is set forth on
Schedule 1 hereto.



     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its
successors.



     “S&P Rating” means, on any date of determination, the rating accorded to the Company’s
senior unsecured long-term debt by S&P (or if the Obligations are secured, the rating accorded to
the Company’s senior secured long-term debt by S&P), or if such rating is unavailable, the
Company’s long-term issuer credit rating accorded to it by S&P.



     “Schedule I Canadian Lender” shall mean any bank named on Schedule I to the Bank Act
(Canada).



     “Schedule I Reference Canadian Lenders” shall mean Canadian Imperial Bank of Commerce
and The Bank of Nova Scotia.



     “Schedule II/III Canadian Lender” shall mean any bank named on Schedule II or Schedule
III to the Bank Act (Canada).



     “Senior Officer” shall mean the chief executive officer, president, chief financial
officer, chief administrative officer, chief operating officer or vice president-treasurer of the
Company.



     “Sharing Date” shall mean the date upon the earliest to occur of (i) the termination
of the Commitments pursuant to Section 10.01 hereof, (ii) the acceleration of the Obligations
pursuant to 10.01 hereof, (iii) the occurrence of an Event of Default pursuant to Section 10.01(f)
or (g), but only if such Event of Default relates to a Borrower, or (iv) the Commitment Termination
Date, to the extent that any of the Obligations (other than contingent indemnification obligations)
remain outstanding as of the close of business (local time in the Principal Office) as of such
date.



     “Sharing Percentage” shall mean, with respect to each Lender, a percentage determined
for such Lender on the Sharing Date obtained by dividing the Credit Facility Exposure of such
Lender on the Sharing Date by the Aggregate Credit Facility Exposure on the Sharing Date, in each
case as calculated, with respect to any amounts outstanding in a Designated Foreign Currency, using
the Dollar Equivalent of such amount in effect on the Sharing Date, as the foregoing percentage may
be adjusted as a result of any assignments made pursuant to Section 13.06 hereof after the Sharing
Date.



     “Significant Subsidiary” shall mean at any time any Subsidiary of the Company, except
Subsidiaries of the Company which, if aggregated and considered as a single Subsidiary at the time
of occurrence with respect to such Subsidiaries of any event or condition of the kind described in
clause (e), (f) or (g) of Section 10.01, would not meet the definition of a “significant
subsidiary” contained as of the date hereof in Regulation S-X of the Securities and Exchange
Commission; provided that for purposes of Section 9.04 only, “Significant Subsidiary” shall
mean at any time any Subsidiary which would meet the definition of a “significant subsidiary”
contained as of the date hereof in Regulation S-X of the Securities and Exchange Commission.



28









 





     “Standby Letter of Credit” shall mean any standby letter of credit issued for the
purpose of supporting workers compensation, liability insurance, releases of contract retention
obligations, contract performance guarantee requirements and other bonding obligations or for other
lawful purposes.



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



     “Subsidiary” shall mean, with respect to any Person (the “parent”) at any
date, (i) any corporation, limited liability company, partnership or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date and
(ii) any other corporation, limited liability company, partnership or other entity of which
ownership interests representing at least a majority of the ordinary voting power or, in the case
of partnership, at least a majority of the general partnership interests, are, as of such date,
directly or indirectly owned, controlled or held by the parent and/or one or more of its
Subsidiaries.



     “Swing Line Commitment” shall mean $20,000,000.



     “Swing Line Facility” shall mean the credit facility established under Section
2.01(c).



     “Swing Line Facility Exposure” shall mean, at any time, the sum of the principal
amount of Swing Loans outstanding at such time.



     “Swing Line Lender” shall mean National City.



     “Swing Line Note” shall mean a promissory note substantially in the form of
Exhibit A-2 hereto.



     “Swing Loan” shall mean any loan made by the Swing Line Lender under the Swing Line
Facility.



     “Swing Loan Maturity Date” shall mean the earlier of (i) (A) with respect to any Swing
Loan (other than an Automatic Swing Loan), the last day of the period for such Swing Loan as
established by the Swing Line Lender and agreed to by the Company, which shall be less than 15
days, and (B) with respect to any Automatic Swing Loan, the Business Day immediately succeeding the
day on which such Automatic Swing Loan was made, and (ii) the Commitment Termination Date.



     “Swing Loan Participation” has the meaning provided in Section 2.01(c)(iii).



     “Swing Loan Participation Amount” has the meaning provided in Section 2.01(c)(iii).



     “Total Canadian Commitment” shall mean, at any time, the sum of the Canadian
Commitments of the Canadian Lenders at such time. As of the Closing Date, the amount of the Total
Canadian Commitment is $50,000,000.



29









 





     “Total Revolving Commitment” shall mean, at any time, the sum of the Revolving
Commitments of the Lenders at such time. As of the Closing Date, the amount of the Total Revolving
Commitment is $350,000,000.



     “Type” shall mean any type of Loan determined with respect to the interest option and
currency denomination applicable thereto, which (x) for all purposes other than in the case of the
Canadian Facility, shall be a Base Rate Loan, a Eurodollar Loan, a Foreign Currency Loan or a Swing
Loan, and (y) in the case of the Canadian Facility, shall be a Canadian Base Rate Loan or a BA
Equivalent Loan.



     “Unfunded Liabilities” shall mean, with respect to any Plan, at any time, the amount
(if any) by which (i) the value of all benefits liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (ii) the fair market value of all Plan assets allocable to such benefits under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of the Company or any member of the Controlled Group to the PBGC or any other Person
under Title IV of ERISA.



     “Unpaid Drawing” shall mean, with respect to any Letter of Credit, the aggregate
Dollar or Dollar Equivalent amount, as applicable, of the draws made on such Letter of Credit that
have not been reimbursed by the Company or the applicable LC Obligor or, in the case of any
Revolving Letter of Credit, converted to a Revolving Loan pursuant to Section 2.01(d)(vi), or in
the case of any Canadian Letter of Credit, converted to a Canadian Revolving Loan pursuant to
Section 2.01(e)(vi), and, in each case, all interest that accrues thereon pursuant to this
Agreement.



     “USA Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001.



     1.02 Accounting Terms and Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with respect to accounting
matters hereunder shall be made, and all financial statements and certificates and reports as to
financial matters required to be delivered hereunder shall be prepared, in accordance with GAAP;
provided that if any change in GAAP in itself materially affects the calculation of any financial
covenant in Section 9, the Company may by notice to the Administrative Agent, or the Administrative
Agent (at the request of the Majority Lenders) may by notice to the Company, require that such
covenant thereafter be calculated in accordance with GAAP as in effect, and applied by the Company,
immediately before such change in GAAP occurs. If such notice is given, the compliance
certificates delivered pursuant to Section 9.01 after such change occurs shall be accompanied by
reconciliations of the difference between the calculation set forth therein and a calculation made
in accordance with GAAP as in effect from time to time after
such change occurs. To enable the ready determination of compliance with the covenants set
forth in Section 9 hereof, the Company will not change from May 31 in each year the date on which
its fiscal year ends, nor from August 31, November 30 and February 28 (or 29) the dates on which
the first three fiscal quarters in each fiscal year end.



30









 





     1.03 Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and
Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all real property, tangible and
intangible assets and properties, including cash, securities, accounts and contract rights, and
interests in any of the foregoing, and (f) any reference to a statute, rule or regulation is to
that statute, rule or regulation as now enacted or as the same may from time to time be amended,
re-enacted or expressly replaced.



     1.04 Currency Equivalents.



     (a) Except as otherwise specified herein, all references herein or in any other Loan Document
to a dollar amount shall mean such amount in Dollars or, if the context so requires, the Dollar
Equivalent of such amount in any Designated Foreign Currency.



     (b) The Administrative Agent shall (i) determine the Dollar Equivalent of the principal amount
of all outstanding Foreign Currency Loans and Canadian Revolving Loans and the Stated Amount of all
outstanding Letters of Credit denominated in a Designated Foreign Currency by not later than the
close of business on each Calculation Date and (ii) give notice thereof to the Lenders and the
Company promptly thereafter. The Dollar Equivalent so determined shall become effective on the
first Business Day immediately following the applicable Calculation Date and shall remain effective
until the next succeeding Calculation Date.



     (c) In determining whether the Company and its Subsidiaries have exceeded any basket
limitation set forth in Section 9.11, 9.12, 9.16 or 10.01(b), (h) or (i), the Company and its
Subsidiaries shall not be deemed to have exceeded any such basket limitation to the extent that,
and only to the extent that, any such basket limitation was exceeded solely as a result of
fluctuations in the exchange rate applicable to any Designated Foreign Currency.



     1.05 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit that, by its
terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be



31









 







the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.



     SECTION 2. COMMITMENTS.



     2.01 Loans and Letters of Credit.



     (a) Revolving Loans. During the Commitment Period, each Lender that has a Revolving
Commitment severally agrees, on the terms and conditions set forth in this Agreement, to make a
Revolving Loan or Revolving Loans to each Revolving Borrower from time to time pursuant to such
Lender’s Revolving Commitment, which Revolving Loans (i) may, except as set forth herein, at the
option of each Revolving Borrower, be incurred and maintained as, or converted into, Revolving
Loans that are Base Rate Loans, Eurodollar Loans or Foreign Currency Loans, in each case
denominated in Dollars or a Designated Foreign Currency, provided that all Revolving Loans made as
part of the same borrowing shall, unless otherwise specifically provided herein, be made to the
same Revolving Borrower and consist of Revolving Loans of the same Type; (ii) may be repaid or
prepaid and re-borrowed in accordance with the provisions hereof; and (iii) shall not be made if,
after giving effect to any such Revolving Loan, (A) the Revolving Exposure of any Lender would
exceed such Lender’s Revolving Commitment, (B) the Aggregate Revolving Exposure would exceed the
Total Revolving Commitment, or (C) any Borrower would be required to prepay Loans or cash
collateralize Letters of Credit pursuant to Section 3.02(b).



     (b) Canadian Revolving Loans. At any time during the Commitment Period, each Canadian
Lender severally agrees, on the terms and conditions set forth in this Agreement, to make a
Canadian Revolving Loan or Canadian Revolving Loans to the Canadian Borrowers from time to time
pursuant to such Canadian Lender’s Canadian Commitment, which Canadian Revolving Loans (i) may,
except as set forth herein, at the option of the Canadian Borrowers, be incurred and maintained as,
or converted into, Canadian Revolving Loans that are Canadian Base Rate Loans or BA Equivalent
Loans, in each case denominated in Canadian Dollars, provided that all Canadian Revolving Loans
made as part of the same borrowing shall, unless otherwise specifically provided herein, be made to
the same Canadian Borrower and consist of Canadian Revolving Loans of the same Type; (ii) may be
repaid or prepaid and re-borrowed in accordance with the provisions hereof; and (iii) shall not be
made if, after giving effect to any such Canadian Revolving Loan, (A) the Canadian Facility
Exposure of any Canadian Lender would exceed such Canadian Lender’s Canadian Commitment, (B) the
Aggregate Canadian Facility Exposure would exceed the Total Canadian Commitment, or (C) any
Borrower would be required to prepay Loans or cash collateralize Letters of Credit pursuant to
Section 3.02(b).



     (c) Swing Line Facility.




     (i) Swing Loans. During the Commitment Period, the Swing Line Lender agrees,
on the terms and conditions set forth in this Agreement, to make a Swing Loan or Swing Loans
to the Company, which Swing Loans (A) shall be payable on the Swing Loan Maturity Date
applicable to each such Swing Loan; (B) shall be made only in Dollars; (C) may be repaid or
prepaid and reborrowed in accordance with the provisions hereof; (D) may only be made if
after giving effect thereto (1) the Swing Line Facility



32









 







Exposure would not exceed the Swing
Line Commitment, and (2) the Aggregate Revolving Exposure would not exceed the Total
Revolving Commitment; (E) shall not be made if, after giving effect thereto, any Borrower
would be required to prepay Loans or cash collateralize Letters of Credit pursuant to
Section 3.02(b); and (F) shall not be made if the proceeds thereof would be used to repay,
in whole or in part, any outstanding Swing Loan. On the day that a Swing Loan is made by the
Swing Line Lender and after giving effect to such Swing Loan the aggregate amount of Swing
Loans outstanding at such time would exceed the Funded Swing Loan Threshold, the Funded
Swing Line Participant shall (x) be deemed to have purchased an undivided participating
interest in all outstanding Swing Loans in an amount equal to 50% of all outstanding Swing
Loans (the “Funded Swing Line Participation Amount”) and (y) pay to the Swing Line
Lender, in immediately available funds, the Funded Swing Line Participation Amount. If any
amount required to be paid by the Funded Swing Line Participant pursuant to the above is not
paid on the date such payment is due, the Funded Swing Line Participant shall pay to the
Swing Line Lender on demand interest on the amount not so paid at the overnight Federal
Funds Effective Rate from the due date until such amount is paid in full. The Swing Line
Lender shall remit to the Funded Swing Line Participant its pro rata portion of interest due
and payable under Section 4.02 hereof in respect of the Funded Swing Line Participation
Amount promptly after receipt of such interest by the Company. The obligations of the Funded
Swing Line Participant to participate in Swing Loans in accordance with the foregoing are in
addition to its obligations as a Lender to participate in Swing Loans pursuant to Section
2.01(c)(ii).




     (ii) Swing Loan Refunding. At any time the Swing Line Lender may, in its sole
and absolute discretion, direct that the Swing Loans owing to it be refunded by delivering a
notice to such effect to the Administrative Agent, specifying the aggregate principal amount
thereof (a “Notice of Swing Loan Refunding”). Promptly upon receipt of a Notice of
Swing Loan Refunding, the Administrative Agent shall give notice of the contents thereof to
the Lenders with Revolving Commitments and, unless an Event of Default specified in Section
10.01(f) or (g) in respect of the Company has occurred, the Company. If no Event of Default
has occurred and is continuing at the time the Administrative Agent receives a Notice of
Swing Loan Refunding, the Administrative Agent shall give notice of the contents of such
Notice of Swing Loan Refunding to the Company and permit the Company to convert such Swing
Loans into Fixed Rate Loans within three Business Days after the Administrative Agent
delivers such notice to the Company, and if the Company fails to so convert such Swing Loans
on or before the third Business Day, such Swing Loans shall be converted to Eurodollar Loans
with an Interest Period of one month. If an Event of Default has occurred and is continuing
at the time the Administrative Agent receives a Notice of Swing Loan Refunding, such Notice
of Swing Loan Refunding shall be deemed to constitute delivery by the Company of a notice
requesting Revolving Loans consisting of Base Rate Loans in the amount of the
Swing Loans to which it relates, and such Swing Loans shall be converted to Base Rate
Loans. Each Lender with a Revolving Commitment (including the Swing Line Lender and the
Funded Swing Line Participant) hereby unconditionally agrees (notwithstanding that any of
the conditions specified in Section 7.02 or elsewhere in this Agreement shall not have been
satisfied, but subject to the provisions of paragraph (iv) below) to make a Revolving Loan
to the Company in the amount of such Lender’s Revolving Percentage of



33









 







the aggregate amount
of the Swing Loans to which such Notice of Swing Loan Refunding relates. Each such Lender
shall make the amount of such Revolving Loan available to the Administrative Agent in
immediately available funds at the Payment Office not later than 2:00 P.M. (local time at
the Payment Office), if such notice is received by such Lender prior to 11:00 A.M. (local
time at its Domestic Lending Office), or not later than 2:00 P.M. (local time at the Payment
Office) on the next Business Day, if such notice is received by such Lender after such time.
The proceeds of such Revolving Loans shall be made immediately available to the applicable
Swing Line Lender and applied by it to repay the principal amount of the Swing Loans to
which such Notice of Swing Loan Refunding relates.




     (iii) Swing Loan Participation. If prior to the time a Revolving Loan would
otherwise have been made as provided above as a consequence of a Notice of Swing Loan
Refunding, any of the events specified in Section 10.01 (f) or (g) shall have occurred in
respect of the Company or one or more of the Lenders with Revolving Commitments shall
determine that it is legally prohibited from making a Revolving Loan under such
circumstances, each Lender (other than the Swing Line Lender and, if the Funded Swing Line
Participant has purchased a participating interest in the Swing Loans that are the subject
of such Notice of Swing Loan Refunding pursuant to Section 2.01(c)(i), the Funded Swing Line
Participant), or each Lender (other than the Swing Line Lender and, if the Funded Swing Line
Participant has purchased a participating interest in the Swing Loans that are the subject
of such Notice of Swing Loan Refunding pursuant to Section 2.01(c)(ii), the Funded Swing
Line Participant) so prohibited, as the case may be, shall, on the date such Revolving Loan
would have been made by it (the “Purchase Date”), purchase an undivided
participating interest (a “Swing Loan Participation”) in the outstanding Swing Loans
to which such Notice of Swing Loan Refunding relates, in an amount (the “Swing Loan
Participation Amount”) equal to such Lender’s Revolving Percentage of such outstanding
Swing Loans. On the Purchase Date, each such Lender or each such Lender so prohibited, as
the case may be, shall pay to the applicable Swing Line Lender, in immediately available
funds, such Lender’s Swing Loan Participation Amount, and promptly upon receipt thereof the
Swing Line Lender shall, if requested by such other Lender, deliver to such Lender a
participation certificate, dated the date of the Swing Line Lender’s receipt of the funds
from, and evidencing such Lender’s Swing Loan Participation in, such Swing Loans and its
Swing Loan Participation Amount in respect thereof. If any amount required to be paid by a
Lender to the Swing Line Lender pursuant to the above provisions in respect of any Swing
Loan Participation is not paid on the date such payment is due, such Lender shall pay to the
Swing Line Lender on demand interest on the amount not so paid at the overnight Federal
Funds Effective Rate from the due date until such amount is paid in full. Upon receipt of
such Swing Loan Participation Amount, if the Funded Swing Line Participant has purchased a
participating interest in the Swing Loans related thereto, the Swing Line
Lender shall pay to the Funded Swing Line Participant its pro rata portion of such
amount owing to the Funded Swing Line Participant. Whenever, at any time after the Swing
Line Lender has received from any other Lender such Lender’s Swing Loan Participation
Amount, the Swing Line Lender receives any payment from or on behalf of the Company on
account of the related Swing Loans, the Swing Line Lender will promptly distribute to such
Lender its ratable share of such amount based on its Revolving Percentage of such



34









 







amount on
such date on account of its Swing Loan Participation (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s participating
interest was outstanding and funded); provided, however, that if such payment received by
the Swing Line Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line Lender.




     (iv) Obligations Unconditional. Each Lender’s obligation to make Revolving
Loans pursuant to this Section 2.01(c) and/or to purchase Swing Loan Participations in
connection with a Notice of Swing Loan Refunding shall be subject to the conditions that (A)
such Lender shall have received a Notice of Swing Loan Refunding complying with the
provisions hereof and (B) at the time the Swing Loans that are the subject of such Notice of
Swing Loan Refunding were made, the Swing Line Lender making the same had no actual written
notice from another Lender that an Event of Default had occurred and was continuing, but
otherwise shall be absolute and unconditional, shall be solely for the benefit of the Swing
Line Lender that gives such Notice of Swing Loan Refunding, and shall not be affected by any
circumstance, including, without limitation, (1) any set-off, counterclaim, recoupment,
defense or other right that such Lender may have against any other Lender, any Borrower, or
any other Person, or any Borrower may have against any Lender or other Person, as the case
may be, for any reason whatsoever; (2) the occurrence or continuance of a Default or Event
of Default; (3) any event or circumstance involving a Material Adverse Effect; (4) any
breach of any Loan Document by any party thereto; or (5) any other circumstance, happening
or event, whether or not similar to any of the foregoing.



     (d) Revolving Letters of Credit.




     (i) LC Issuances. During the Commitment Period, the Company may request an LC
Issuer at any time and from time to time to issue, for the account of any LC Obligor, and
subject to and upon the terms and conditions herein set forth, each applicable LC Issuer
agrees to issue from time to time Revolving Letters of Credit denominated and payable in
Dollars or any Designated Foreign Currency and in each case in such form as may be approved
by such LC Issuer and the Administrative Agent; provided, however, that notwithstanding the
foregoing, no Revolving LC Issuance shall be made if, after giving effect thereto, (A) the
Revolving LC Outstandings would exceed the Revolving LC Commitment Amount, (B) the Revolving
Exposure of any Lender would exceed such Lender’s Revolving Commitment, (C) the Aggregate
Revolving Exposure would exceed the Total Revolving Commitment, or (D) the Borrower would be
required to prepay Loans or cash collateralize Revolving Letters of Credit pursuant to
Section 3.02(b) hereof; provided, further, that such LC Issuer shall not issue any Revolving
Letter of Credit if it has received notice (which may be by telephone or in
writing) on or before the day that is two Business Days before the date of issuance
from the Administrative Agent, any Lender or the Company that one or more of the applicable
conditions specified in Section 7.02 is not then satisfied. Subject to Section 2.01(d)(iii)
below, each Revolving Letter of Credit shall have an expiry date (including any renewal
periods) occurring not later than the earlier of (y) one year from the date of issuance
thereof, or (z) 30 Business Days prior to the Commitment Termination Date.



35









 






     (ii) LC Requests. Whenever the Company desires that a Revolving Letter of
Credit be issued for its account or the account of any other LC Obligor, the Company shall
give the Administrative Agent and the applicable LC Issuer written or telephonic notice (in
the case of telephonic notice, promptly confirmed in writing if so requested by the
Administrative Agent) (each such request, a “Revolving LC Request”), prior to 11:00
A.M. (Cleveland, Ohio time) at least three Business Days, or in the case of any Revolving LC
Request for a Revolving Letter of Credit denominated in a Designated Foreign Currency, five
Business Days (or such shorter period as may be acceptable to such LC Issuer), prior to the
proposed date of issuance (which shall be a Business Day), which Revolving LC Request shall
include such supporting documents that such LC Issuer customarily requires in connection
therewith (including, in the case of a Revolving Letter of Credit for an account party other
than the Company, an application for, and if applicable a reimbursement agreement with
respect to, such Letter of Credit). In the event of any inconsistency between any of the
terms or provisions of any LC Document and the terms and provisions of this Agreement
respecting Revolving Letters of Credit, the terms and provisions of this Agreement shall
control.




     (iii) Auto-Renewal Letters of Credit. If an LC Obligor so requests in any
applicable Revolving LC Request, the applicable LC Issuer shall agree to issue a Revolving
Letter of Credit that has automatic renewal provisions; provided, however, that any
Revolving Letter of Credit that has automatic renewal provisions must permit such LC Issuer
to prevent any such renewal at least once in each twelve-month period (commencing with the
date of issuance of such Revolving Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day in each such twelve-month period to be agreed upon
at the time such Revolving Letter of Credit is issued. Once any such Revolving Letter of
Credit that has automatic renewal provisions has been issued, the Lenders shall be deemed to
have authorized (but may not require) such LC Issuer to permit the renewal of such Revolving
Letter of Credit at any time to an expiry date not later than 30 Business Days prior to the
Commitment Termination Date; provided, however, that such LC Issuer shall not permit any
such renewal if (A) such LC Issuer has determined that it would have no obligation at such
time to issue such Revolving Letter of Credit in its renewed form under the terms hereof, or
(B) it has received notice (which may be by telephone or in writing) on or before the day
that is two Business Days before the date that such LC Issuer is permitted to send a notice
of non-renewal from the Administrative Agent, any Lender or the Company that one or more of
the applicable conditions specified in Section 7.02 is not then satisfied.




     (iv) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by an
LC Issuer and the applicable LC Obligor, when a Revolving Letter of Credit is issued, (i)
the rules of the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect
at the time of issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance (including the International
Chamber of Commerce’s decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to each
Commercial Letter of Credit.



36









 






     (v) Notice of LC Issuance. Each applicable LC Issuer shall, on the date of
each Revolving LC Issuance by it, give the Administrative Agent, each applicable Lender and
the Company written notice of such Revolving LC Issuance, accompanied by a copy to the
Administrative Agent of the Revolving Letter of Credit or Revolving Letters of Credit issued
by it. Each applicable LC Issuer shall provide to the Administrative Agent a quarterly (or
monthly if requested by any applicable Lender) summary describing each Revolving Letter of
Credit issued by such LC Issuer and then outstanding and an identification for the relevant
period of the daily aggregate Revolving LC Outstandings represented by Revolving Letters of
Credit issued by such LC Issuer.




     (vi) Reimbursement Obligations.




          (A) The Company hereby agrees to reimburse (or cause any LC Obligor for whose account a
Revolving Letter of Credit was issued to reimburse) each LC Issuer, by making payment
directly to each such LC Issuer in immediately available funds at the payment office of each
LC Issuer, for any Unpaid Drawing with respect to any Revolving Letter of Credit immediately
after, and in any event on the date on which, such LC Issuer notifies the Company (or any
such other LC Obligor for whose account such Letter of Credit was issued) of such payment or
disbursement (which notice to the Company (or such other LC Obligor) shall be delivered
reasonably promptly after any such payment or disbursement), such payment to be made in
Dollars or in the applicable Designated Foreign Currency in which such Revolving Letter of
Credit is denominated, with interest on the amount so paid or disbursed by such LC Issuer,
to the extent not reimbursed prior to 1:00 p.m. Cleveland, Ohio time on the date of such
payment or disbursement, from and including the date paid or disbursed to but not including
the date such LC Issuer is reimbursed therefor at a rate per annum that shall be the rate
then applicable to Revolving Loans that are Base Rate Loans or, if not reimbursed on the
date of such payment or disbursement, at the Post-Default Rate, any such interest also to be
payable on demand. If by 11:00 a.m. Cleveland, Ohio time on the Business Day immediately
following notice to it of its obligation to make reimbursement in respect of an Unpaid
Drawing, the Company or the relevant LC Obligor has not made such reimbursement out of its
available cash on hand or, in the case of the Company, a contemporaneous borrowing hereunder
(if such borrowing is otherwise available to the Company), (x) the Company will in each case
be deemed to have requested a Revolving Loan that is a Base Rate Loan in an aggregate Dollar
Equivalent principal amount sufficient to reimburse such Unpaid Drawing (and the
Administrative Agent shall promptly give notice to the Lenders of such deemed request for
Revolving Loan), (y) the Lenders shall, unless they are legally prohibited from doing so,
make the Revolving Loans contemplated by such deemed request (which Revolving Loans shall be
considered made under Section 2.01), and (z) the proceeds of such Revolving Loans shall be
disbursed directly to such LC Issuer to the extent necessary to effect such reimbursement
(and such disbursement shall be in full satisfaction of the obligation to make reimbursement
in respect of such Unpaid Drawing), with any excess proceeds to be made available to the
Company in accordance with the applicable provisions of this Agreement.



37









 





          (B) Each applicable LC Obligor’s obligation under this Section to reimburse each
applicable LC Issuer with respect to Unpaid Drawings (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that such LC Obligor may have
or have had against such LC Issuer, the Administrative Agent or any Lender, including,
without limitation, any defense based upon the failure of any drawing under a Revolving
Letter of Credit to conform to the terms of the Revolving Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such drawing;
provided, however, that no LC Obligor shall be obligated to reimburse an LC Issuer for any
wrongful payment made by such LC Issuer under a Revolving Letter of Credit as a result of
acts or omissions constituting willful misconduct or gross negligence on the part of such LC
Issuer.




     (vii) LC Participations.



          (A) Immediately upon each Revolving LC Issuance, the LC Issuer of such Revolving Letter
of Credit shall be deemed to have sold and transferred to each Lender with a Revolving
Commitment, and each such Lender (each an “Revolving LC Participant”) shall be
deemed irrevocably and unconditionally to have purchased and received from such LC Issuer,
without recourse or warranty, an undivided interest and participation (an “Revolving LC
Participation”), to the extent of such Lender’s Revolving Percentage of the Stated
Amount of such Revolving Letter of Credit in effect at such time of issuance, in such
Revolving Letter of Credit, each substitute letter of credit, each drawing made thereunder,
the obligations of any LC Obligor under this Agreement with respect thereto (although LC
Fees relating thereto shall be payable directly to the Administrative Agent for the account
of the Lenders as provided in Section 2.03(d) and the Revolving LC Participants shall have
no right to receive any portion of any fees of the nature contemplated by Section
2.03(d)(iii) or Section 2.03(d)(iv)), the obligations of any LC Obligor under any LC
Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the
foregoing.




          (B) In determining whether to pay under any Revolving Letter of Credit, an LC Issuer
shall not have any obligation relative to the Revolving LC Participants other than to
determine that any documents required to be delivered under such Revolving Letter of Credit
have been delivered and that they appear to comply on their face with the requirements of
such Revolving Letter of Credit. Any action taken or omitted to be taken by an LC Issuer
under or in connection with any Revolving Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for any LC Issuer any
resulting liability.




          (C) In the event that an LC Issuer makes any payment under any Revolving Letter of
Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such
LC Issuer pursuant to Section 2.01(d)(vi), such LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each Revolving LC
Participant of such failure, and each Revolving LC Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such LC Issuer, the
amount of such Revolving LC Participant’s Revolving Percentage of





38









 







such payment in Dollars or
in the applicable Designated Foreign Currency in which such Revolving Letter of Credit is
denominated and in same-day funds; provided, however, that no Revolving LC Participant shall
be obligated to pay to the Administrative Agent its Revolving Percentage of such
unreimbursed amount for any wrongful payment made by such LC Issuer under a Revolving Letter
of Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such LC Issuer. If the Administrative Agent so notifies any
Revolving LC Participant required to fund a payment under a Revolving Letter of Credit prior
to 1:00 p.m. (local time at its Notice Office) on any Business Day, such Revolving LC
Participant shall make available to the Administrative Agent for the account of the relevant
LC Issuer such Revolving LC Participant’s Revolving Percentage of the amount of such payment
on such Business Day in same-day funds. If and to the extent such Revolving LC Participant
shall not have so made its Revolving Percentage of the amount of such payment available to
the Administrative Agent for the account of the relevant LC Issuer, such Revolving LC
Participant agrees to pay to the Administrative Agent for the account of such LC Issuer,
forthwith on demand, such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the account of such
LC Issuer at the Federal Funds Effective Rate. The failure of any Revolving LC Participant
to make available to the Administrative Agent for the account of the relevant LC Issuer its
Revolving Percentage of any payment under any Revolving Letter of Credit shall not relieve
any other Revolving LC Participant of its obligation hereunder to make available to the
Administrative Agent for the account of such LC Issuer its Revolving Percentage of any
payment under any Revolving Letter of Credit on the date required, as specified above, but
no Revolving LC Participant shall be responsible for the failure of any other Revolving LC
Participant to make available to the Administrative Agent for the account of such LC Issuer
such other Revolving LC Participant’s Revolving Percentage of any such payment.




          (D) Whenever an LC Issuer receives a payment of a reimbursement obligation as to which
the Administrative Agent has received for the account of such LC Issuer any payments from
the Revolving LC Participants pursuant to subpart (C) above, such LC Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each Revolving LC
Participant that has paid its Revolving Percentage thereof, in same-day funds, an amount
equal to such Revolving LC Participant’s Revolving Percentage of the principal amount
thereof and interest thereon accruing after the purchase of the respective Revolving LC
Participations, as and to the extent so received.




          (E) The obligations of the Revolving LC Participants to make payments to the
Administrative Agent for the account of each LC Issuer with respect to
Revolving Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances: (1) any lack of validity
or enforceability of this Agreement or any of the other Loan Documents; (2) the existence of
any claim, set-off defense or other right that any LC Obligor may have at any time against a
beneficiary named in a Revolving Letter of Credit, any transferee of any




          
39









 








Revolving Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent,
any LC Issuer, any Lender, or other Person, whether in connection with this Agreement, any
Revolving Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the applicable LC Obligor and the
beneficiary named in any such Revolving Letter of Credit), other than any claim that the
applicable LC Obligor may have against such LC Issuer for gross negligence or willful
misconduct of such LC Issuer in making payment under any applicable Revolving Letter of
Credit; (3) any draft, certificate or other document presented under the Revolving Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (4) the surrender or impairment
of any security for the performance or observance of any of the terms of any of the Loan
Documents; or (5) the occurrence of any Default or Event of Default.




          (F) To the extent an LC Issuer is not indemnified by the Company or any LC Obligor, the
Revolving LC Participants will reimburse and indemnify such LC Issuer, in proportion to
their respective Revolving Percentages, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature that may be imposed on, asserted against or
incurred by such LC Issuer in performing its respective duties in any way related to or
arising out of Revolving LC Issuances by it; provided, however, that no Revolving LC
Participants shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting
from such LC Issuer’s gross negligence or willful misconduct.




     (viii) Existing Letters of Credit. On and after the Closing Date, each
Existing Letter of Credit shall be deemed to have been issued by National City as an LC
Issuer hereunder, and each Existing Letter of Credit shall constitute a Revolving Letter of
Credit for all purposes hereof and under this Agreement and the other Loan Documents. The
Company agrees that it shall be liable with respect to any drawing made under any of the
Existing Letters of Credit in accordance with this Section and the other provisions of this
Agreement. The Company and National City agree that on and after the Closing Date (i) the
fees applicable to each Existing Letter of Credit shall be the fees set forth in this
Agreement and, (ii) to the extent there is any reimbursement agreement in effect with
respect to any Existing Letter of Credit and the terms of such reimbursement agreement and
this Agreement in any way conflict or are inconsistent, the terms of this Agreement shall
control.



(e) Canadian Letters of Credit.




     (i) LC Issuances. During the Commitment Period, a Canadian Borrower may
request an LC Issuer at any time and from time to time to issue, for the account of any LC
Obligor, and subject to and upon the terms and conditions herein set forth, each applicable
LC Issuer agrees to issue from time to time Canadian Letters of Credit denominated and
payable in Canadian Dollars in such form as may be approved by such LC Issuer and the
Administrative Agent; provided, however, that notwithstanding the foregoing, no Canadian LC
Issuance shall be made if, after giving effect thereto, (A) the



40









 







Canadian LC Outstanding would exceed the Canadian LC Commitment Amount, (B) the Canadian Facility Exposure of any
Canadian Lender would exceed such Canadian Lender’s Canadian Commitment, (C) the Aggregate
Canadian Facility Exposure would exceed the Total Canadian Commitment, or (D) the Canadian
Borrower would be required to prepay Loans or cash collateralize Canadian Letters of Credit
pursuant to Section 3.02(b) hereof; provided, further, that such LC Issuer shall not issue
any Canadian Letter of Credit if it has received notice (which may be by telephone or in
writing) on or before the day that is two Business Days before the date of issuance from the
Administrative Agent, any Lender or the Company that one or more of the applicable
conditions specified in Section 7.02 is not then satisfied. Subject to Section 2.01(e)(iii)
below, each Canadian Letter of Credit shall have an expiry date (including any renewal
periods) occurring not later than the earlier of (y) one year from the date of issuance
thereof, or (z) 30 Business Days prior to the Commitment Termination Date.



     (ii) LC Requests. Whenever a Canadian Borrower desires that a Canadian Letter
of Credit be issued for its account or the account of any other LC Obligor, such Canadian
Borrower shall give the Administrative Agent and the applicable LC Issuer written or
telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) (each such request, a “Canadian LC Request”),
prior to 11:00 A.M. (Cleveland, Ohio time) at least three Business Days prior to the
proposed date of issuance (which shall be a Business Day), which Canadian LC Request shall
include such supporting documents that such LC Issuer customarily requires in connection
therewith (including, in the case of a Canadian Letter of Credit for an account party other
than such Canadian Borrower, an application for, and if applicable a reimbursement agreement
with respect to, such Letter of Credit). In the event of any inconsistency between any of
the terms or provisions of any LC Document and the terms and provisions of this Agreement
respecting Canadian Letters of Credit, the terms and provisions of this Agreement shall
control.



     (iii) Auto-Renewal Letters of Credit. If an LC Obligor so requests in any
applicable Canadian LC Request, the applicable LC Issuer shall agree to issue a Canadian
Letter of Credit that has automatic renewal provisions; provided, however, that any Canadian
Letter of Credit that has automatic renewal provisions must permit such LC Issuer to prevent
any such renewal at least once in each twelve-month period (commencing with the date of
issuance of such Canadian Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day in each such twelve-month period to be agreed upon at the time
such Canadian Letter of Credit is issued. Once any such Canadian Letter of Credit that has
automatic renewal provisions has been issued, the Canadian Lenders shall be deemed to have
authorized (but may not require) such LC Issuer to permit the renewal of such Canadian
Letter of Credit at any time to an expiry date not later than 30 Business Days prior to the Commitment Termination Date;
provided, however, that such LC Issuer shall not permit any such renewal if (A) such LC
Issuer has determined that it would have no obligation at such time to issue such Canadian
Letter of Credit in its renewed form under the terms hereof, or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is two Business Days
before the date that such LC Issuer is permitted to send a notice of non-



41









 





renewal
from the Administrative Agent, any Lender or the Company that one or more of the applicable
conditions specified in Section 7.02 is not then satisfied.



     (iv) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by an
LC Issuer and the applicable LC Obligor, when a Canadian Letter of Credit is issued, (i) the
rules of the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at
the time of issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance (including the International
Chamber of Commerce’s decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to each
Commercial Letter of Credit.



     (v) Notice of LC Issuance. Each applicable LC Issuer shall, on the date of
each Canadian LC Issuance by it, give the Administrative Agent, each applicable Canadian
Lender and the Company written notice of such Canadian LC Issuance, accompanied by a copy to
the Administrative Agent of the Canadian Letter of Credit or Canadian Letters of Credit
issued by it. Each applicable LC Issuer shall provide to the Administrative Agent a
quarterly (or monthly if requested by any applicable Canadian Lender) summary describing
each Canadian Letter of Credit issued by such LC Issuer and then outstanding and an
identification for the relevant period of the daily aggregate Canadian LC Outstandings
represented by Canadian Letters of Credit issued by such LC Issuer.



     (vi) Reimbursement Obligations.



          (A) Each Canadian Borrower hereby agrees to reimburse (or cause any LC Obligor for
whose account a Canadian Letter of Credit was issued to reimburse) each LC Issuer, by making
payment directly to each such LC Issuer in immediately available funds at the payment office
of each LC Issuer, for any Unpaid Drawing with respect to any Canadian Letter of Credit
immediately after, and in any event on the date on which, such LC Issuer notifies such
Canadian Borrower (or any such other LC Obligor for whose account such Letter of Credit was
issued) of such payment or disbursement (which notice to such Canadian Borrower (or such
other LC Obligor) shall be delivered reasonably promptly after any such payment or
disbursement), such payment to be made in Canadian Dollars, with interest on the amount so
paid or disbursed by such LC Issuer, to the extent not reimbursed prior to 1:00 p.m.
Cleveland, Ohio time on the date of such payment or disbursement, from and including the
date paid or disbursed to but not including the date such LC Issuer is reimbursed therefor
at a rate per annum that shall be the rate then applicable to Canadian Revolving Loans that
are Canadian Base Rate Loans
or, if not reimbursed on the date of such payment or disbursement, at the Post-Default
Rate, any such interest also to be payable on demand. If by 11:00 a.m. Cleveland, Ohio time
on the Business Day immediately following notice to it of its obligation to make
reimbursement in respect of an Unpaid Drawing, such Canadian Borrower or the relevant LC
Obligor has not made such reimbursement out of its available cash on hand or, in the case of
such Canadian Borrower, a contemporaneous borrowing hereunder (if such




42









 







borrowing is otherwise available to such Canadian Borrower), (x) such Canadian Borrower will in each case
be deemed to have requested a Canadian Revolving Loan that is a Canadian Base Rate Loan in
an aggregate Dollar Equivalent principal amount sufficient to reimburse such Unpaid Drawing
(and the Administrative Agent shall promptly give notice to the Lenders of such deemed
request for a Canadian Revolving Loan), (y) the Canadian Lenders shall, unless they are
legally prohibited from doing so, make the Canadian Revolving Loans contemplated by such
deemed request (which Canadian Revolving Loans shall be considered made under Section 2.01),
and (z) the proceeds of such Canadian Revolving Loans shall be disbursed directly to such LC
Issuer to the extent necessary to effect such reimbursement (and such disbursement shall be
in full satisfaction of the obligation to make reimbursement in respect of such Unpaid
Drawing), with any excess proceeds to be made available to such Canadian Borrower in
accordance with the applicable provisions of this Agreement.




          (B) Each applicable LC Obligor’s obligation under this Section to reimburse each
applicable LC Issuer with respect to Unpaid Drawings (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that such LC Obligor may have
or have had against such LC Issuer, the Administrative Agent or any Lender, including,
without limitation, any defense based upon the failure of any drawing under a Canadian
Letter of Credit to conform to the terms of the Canadian Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such drawing;
provided, however, that no LC Obligor shall be obligated to reimburse an LC Issuer for any
wrongful payment made by such LC Issuer under a Canadian Letter of Credit as a result of
acts or omissions constituting willful misconduct or gross negligence on the part of such LC
Issuer.




     (vii) LC Participations.



          (A) Immediately upon each Canadian LC Issuance, the LC Issuer of such Canadian Letter
of Credit shall be deemed to have sold and transferred to each Canadian Lender with a
Canadian Commitment, and each such Canadian Lender (each an “Canadian LC
Participant”) shall be deemed irrevocably and unconditionally to have purchased and
received from such LC Issuer, without recourse or warranty, an undivided interest and
participation (a “Canadian LC Participation”), to the extent of such Canadian
Lender’s Canadian Commitment Percentage of the Stated Amount of such Canadian Letter of
Credit in effect at such time of issuance, in such Canadian Letter of Credit, each
substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor
under this Agreement with respect thereto (although LC Fees relating thereto shall be
payable directly to the Administrative Agent for the account of the Canadian Lenders as
provided in Section 2.03(e) and the Canadian LC Participants shall have no
right to receive any portion of any fees of the nature contemplated by Section
2.03(e)(iii) or Section 2.03(e)(iv)), the obligations of any LC Obligor under any LC
Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the
foregoing.




          (B) In determining whether to pay under any Canadian Letter of Credit, an LC Issuer
shall not have any obligation relative to the Canadian LC





43










 






Participants other than to determine that any documents required to be delivered under
such Canadian Letter of Credit have been delivered and that they appear to comply on their
face with the requirements of such Canadian Letter of Credit. Any action taken or omitted
to be taken by an LC Issuer under or in connection with any Canadian Letter of Credit, if
taken or omitted in the absence of gross negligence or willful misconduct, shall not create
for any LC Issuer any resulting liability.




     (C) In the event that an LC Issuer makes any payment under any Canadian Letter of
Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such
LC Issuer pursuant to Section 2.01(e)(vi), such LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each Canadian LC
Participant of such failure, and each Canadian LC Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such LC Issuer, the
amount of such Canadian LC Participant’s Canadian Commitment Percentage of such payment in
Canadian Dollars and in same-day funds; provided, however, that no Canadian LC Participant
shall be obligated to pay to the Administrative Agent its Canadian Commitment Percentage of
such unreimbursed amount for any wrongful payment made by such LC Issuer under a Canadian
Letter of Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such LC Issuer. If the Administrative Agent so notifies any
Canadian LC Participant required to fund a payment under a Canadian Letter of Credit prior
to 1:00 p.m. (local time at its Notice Office) on any Business Day, such Canadian LC
Participant shall make available to the Administrative Agent for the account of the relevant
LC Issuer such Canadian LC Participant’s Canadian Commitment Percentage of the amount of
such payment on such Business Day in same-day funds. If and to the extent such Canadian LC
Participant shall not have so made its Canadian Commitment Percentage of the amount of such
payment available to the Administrative Agent for the account of the relevant LC Issuer,
such Canadian LC Participant agrees to pay to the Administrative Agent for the account of
such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each
day from such date until the date such amount is paid to the Administrative Agent for the
account of such LC Issuer at the Federal Funds Effective Rate. The failure of any Canadian
LC Participant to make available to the Administrative Agent for the account of the relevant
LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of
Credit shall not relieve any other Canadian LC Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such LC Issuer its Canadian
Commitment Percentage of any payment under any Canadian Letter of Credit on the date
required, as specified above, but no Canadian LC Participant shall be responsible for the
failure of any other Canadian LC Participant to make available to the Administrative Agent
for the account of such LC Issuer such other Canadian LC Participant’s Canadian Commitment
Percentage of any such payment.




     (D) Whenever an LC Issuer receives a payment of a reimbursement obligation as to which
the Administrative Agent has received for the account of such LC Issuer any payments from
the Canadian LC Participants pursuant to subpart (C) above, such LC Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each Canadian LC
Participant that has paid its Canadian Commitment



44









 







Percentage thereof, in same-day funds, an amount equal to such Canadian LC
Participant’s Canadian Commitment Percentage of the principal amount thereof and interest
thereon accruing after the purchase of the respective Canadian LC Participations, as and to
the extent so received.




     (E) The obligations of the Canadian LC Participants to make payments to the
Administrative Agent for the account of each LC Issuer with respect to Canadian Letters of
Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance with the terms
and conditions of this Agreement under all circumstances, including, without limitation, any
of the following circumstances: (1) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents; (2) the existence of any claim, set-off defense or other
right that any LC Obligor may have at any time against a beneficiary named in a Canadian
Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom
any such transferee may be acting), the Administrative Agent, any LC Issuer, any Lender, or
other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any underlying
transaction between the applicable LC Obligor and the beneficiary named in any such Canadian
Letter of Credit), other than any claim that the applicable LC Obligor may have against such
LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment
under any applicable Canadian Letter of Credit; (3) any draft, certificate or other document
presented under the Canadian Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate in any
respect; (4) the surrender or impairment of any security for the performance or observance
of any of the terms of any of the Loan Documents; or (5) the occurrence of any Default or
Event of Default.




     (F) To the extent an LC Issuer is not indemnified by a Canadian Borrower or any
applicable LC Obligor, the Canadian LC Participants will reimburse and indemnify such LC
Issuer, in proportion to their respective Canadian Commitment Percentages, for and against
any and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed
on, asserted against or incurred by such LC Issuer in performing its respective duties in
any way related to or arising out of Canadian LC Issuances by it; provided, however, that no
Canadian LC Participants shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements
resulting from such LC Issuer’s gross negligence or willful misconduct.



     2.02 Adjustment of Commitments.



     (a) Mandatory Termination. The Commitments shall be terminated on the Commitment
Termination Date. Once terminated, the Commitments may not be reinstated.



     (b) Optional Reductions. The Company shall have the right to terminate or reduce the
Commitments at any time or from time to time, provided that: (i) the Company shall
give



45









 







notice of each such termination or reduction to the Administrative Agent as provided in
Section 5.05 hereof, (ii) each partial reduction shall be in an aggregate amount equal to
$10,000,000 or any greater multiple of $5,000,000 and (iii) no such reduction shall be permitted
unless and until, in connection therewith, any mandatory prepayments that would be required to be
made upon the effectiveness of such a reduction has been made. Once terminated or, subject to
Section 2.02 (c) and (d), reduced, the Commitments may not be reinstated.



     (c) Additional Revolving Commitments. At any time during the Commitment Period, if no
Default or Event of Default shall have occurred and be continuing at such time, the Company may, if
it so elects, increase the aggregate amount of the Revolving Commitments, by agreeing with one or
more existing Lenders that such Lenders’ Revolving Commitments shall be increased (each such Lender
agreeing to increase its Revolving Commitment is hereinafter referred to as an “Increasing
Lender”). If the Increasing Lender(s) shall have agreed to increase their respective Revolving
Commitments by an aggregate amount less than the increase requested by the Company in accordance
with this clause (d), the Company may arrange for one or more banks or other entities, in each case
acceptable to the Administrative Agent (each such bank or entity is hereinafter referred to as an
“Augmenting Lender”) to commit to making Revolving Loans pursuant to a Revolving Commitment
hereunder in an amount no less than $15,000,000. Upon execution and delivery by the Company and
each such Increasing Lender and/or Augmenting Lender of an instrument of assumption and such other
documentation reasonably requested by the Administrative Agent, in each case in form and substance
satisfactory to the Administrative Agent, each such Increasing Lender and/or Augmenting Lender
shall have a Revolving Commitment as therein set forth; provided that (i) such increase may only
occur once, on a single date, (ii) the Company shall provide prompt notice of such increase to the
Administrative Agent not less than 30 days prior to the proposed increase date, which shall
promptly notify the other Lenders, (iii) the aggregate amount of all such increases made pursuant
to this clause (d) shall not exceed $100,000,000, and (iv) the sum of the Total Revolving
Commitment and Total Canadian Commitment, after giving effect to such increase, shall at no time
exceed $575,000,000. Upon any increase in the aggregate amount of the Revolving Commitments
pursuant to this clause (d), within five Business Days in the case of all Revolving Loans that are
Base Rate Loans outstanding, and at the end of the then current Interest Period with respect
thereto in the case of all Eurodollar Loans then outstanding, the Company shall prepay such Loans
in their entirety, and, to the extent the Company elects to do so and subject to the conditions
specified in Section 7, the Company shall reborrow Revolving Loans from the Lenders in proportion
to their respective Revolving Commitments after giving effect to such increase, until such time as
all outstanding Revolving Loans are held by the Lenders in such proportion.



     (d) Additional Canadian Commitments. At any time during the Commitment Period, if no
Default or Event of Default shall have occurred and be continuing at such time, the Company may, if
it so elects, increase the aggregate amount of the Canadian Commitments, by agreeing with one or
more existing Canadian Lenders that such Canadian Lenders’ Canadian Commitments shall be increased
(each such Canadian Lender agreeing to increase its Canadian Commitment is hereinafter referred to
as an “Increasing Canadian Lender”). If the Increasing Canadian Lender(s) shall have agreed
to increase their respective Canadian Commitments by an aggregate amount less than the increase
requested by the Company in accordance with this clause (e), the Company may arrange for one or
more banks or other entities, in each case



46









 







acceptable to the Administrative Agent (each such bank or entity is hereinafter referred to as
an “Augmenting Canadian Lender”) to commit to making Loans pursuant to a Canadian
Commitment hereunder in an amount no less than $5,000,000. Upon execution and delivery by the
Company, each Canadian Borrower and each such Increasing Canadian Lender and/or Augmenting Canadian
Lender of an instrument of assumption and such other documentation reasonably requested by the
Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent,
each such Increasing Canadian Lender and/or Augmenting Canadian Lender shall have a Canadian
Commitment as therein set forth; provided that (i) such increase may only occur once, on a single
date, (ii) the Company shall provide prompt notice of such increase to the Administrative Agent not
less than 30 days prior to the proposed increase date, which shall promptly notify the other
Lenders, (iii) the aggregate amount of all such increases shall not exceed $75,000,000, and (iv)
the sum of the Total Revolving Commitment and Total Canadian Commitment, after giving effect to
such increase, shall at no time exceed $575,000,000. Upon any increase in the aggregate amount of
the Canadian Commitments pursuant to this clause (e), within five Business Days in the case of all
Canadian Revolving Loans then outstanding, the Canadian Borrowers shall prepay such Canadian
Revolving Loans in their entirety, and, to the extent the Canadian Borrowers elect to do so and
subject to the conditions specified in Section 7, the Canadian Borrowers shall reborrow Loans from
the Canadian Lenders in proportion to their respective Canadian Commitments after giving effect to
such increase, until such time as all outstanding Canadian Revolving Loans are held by the Canadian
Lenders in such proportion.



     2.03 Fees.



     (a) Facility Fees.




     (i) The Company shall pay to the Administrative Agent for the account of each Lender
with a Revolving Commitment facility fees on the daily average amount of such Lender’s
Revolving Commitment (whether used or unused), for the period from the Closing Date to but
excluding the earlier of the date the Revolving Commitments are terminated or the Commitment
Termination Date, at the Applicable Facility Fee Rate; provided that, if such Lender
continues to have any Revolving Loans outstanding after its Revolving Commitment terminates,
then such facility fee shall continue to accrue on the daily outstanding principal amount of
such Lender’s Revolving Loans from and including the date on which its Revolving Commitment
terminates to but excluding the date on which such Lender ceases to have any Revolving Loans
outstanding. Accrued facility fees pursuant to this subclause (a)(i) shall be payable on
the Quarterly Dates and on the date the Revolving Commitments are terminated (and, if later,
on the date the Revolving Loans shall be repaid in their entirety); provided that any
facility fees accruing after the date on which the Commitments terminate shall be payable on
demand.




     (ii) The Canadian Borrowers shall pay to the Administrative Agent for the account of
each Canadian Lender facility fees on the daily average amount of such Canadian Lender’s
Canadian Commitment (whether used or unused), for the period from the Closing Date to but
excluding the earlier of the date the Canadian Commitments are terminated or the Commitment
Termination Date, at the Applicable Facility Fee Rate; provided that, if such Canadian
Lender continues to have any Canadian Revolving Loans



47









 







outstanding after its Canadian Commitment terminates, then such facility fee shall
continue to accrue on the daily outstanding principal amount of such Lender’s Canadian
Revolving Loans from and including the date on which its Canadian Commitment terminates to
but excluding the date on which such Canadian Lender ceases to have any Canadian Revolving
Loans outstanding. Accrued facility fees pursuant to this subclause (a)(ii) shall be
payable on the Quarterly Dates and on the date the Canadian Commitments are terminated (and,
if later, on the date the Canadian Revolving Loans shall be repaid in their entirety);
provided that any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand.



     (b) [Intentionally Deleted].



     (c) Acceptance Fees. The Canadian Borrowers shall pay an Acceptance Fee to each
Canadian Lender in respect of each BA Equivalent Loan made by such Canadian Lender hereunder. The
Acceptance Fee with respect to a BA Equivalent Loan shall be payable on the date such BA Equivalent
Loan is made, and shall be paid to the Canadian Administrative Branch of the Administrative Agent
for the benefit of the Canadian Lender making such BA Equivalent Loan out of the proceeds thereof
as set forth in Section 3.01(b)(ii). The Acceptance Fee with respect to a BA Equivalent Loan shall
be calculated at the rate per annum equal to the Applicable Margin in effect on such date on the
principal amount of, and for the duration of the Interest Period applicable to, such BA Equivalent
Loan.



     (d) LC Fees for Revolving Letters of Credit.




     (i) Standby Letters of Credit. The Company agrees to pay to the Administrative
Agent, for the ratable benefit of each Lender with a Revolving Commitment based upon each
such Lender’s Revolving Percentage, a fee in respect of each Revolving Letter of Credit
issued hereunder that is a Standby Letter of Credit for the period from the date of issuance
of such Revolving Letter of Credit until the expiration date thereof (including any
extensions of such expiration date that may be made at the election of the account party or
the beneficiary), computed for each day at a rate per annum equal to (A) the Applicable
Margin for Revolving Loans that are Eurodollar Loans in effect on such day times (B) the
Stated Amount of such Revolving Letter of Credit on such day. The foregoing fees shall be
payable quarterly in arrears on the last Business Day of each March, June, September and
December and on the Commitment Termination Date.




     (ii) Commercial Letters of Credit. The Company agrees to pay to the
Administrative Agent for the ratable benefit of each Lender with a Revolving Commitment
based upon each such Lender’s Revolving Percentage, a fee in respect of each Revolving
Letter of Credit issued hereunder that is a Commercial Letter of Credit in an amount equal
to (A) the Applicable Margin for Revolving Loans that are Eurodollar Loans in effect on the
date of issuance times (B) the Stated Amount of such Revolving Letter of Credit. The
foregoing fees shall be payable on the date of issuance of such Revolving Letter of Credit.



48









 






     (iii) Fronting Fees. The Company agrees to pay directly to each LC Issuer a
fee in respect of each standby Revolving Letter of Credit issued by it, payable on the date
of issuance (or any increase in the amount, or renewal or extension) thereof, computed at
the rate of 0.125% per annum on the Stated Amount thereof for the period from the date of
issuance (or increase, renewal or extension) to the expiration date thereof (including any
extensions of such expiration date which may be made at the election of the beneficiary
thereof).




     (iv) Additional Charges of LC Issuers. The Canadian Borrowers agree to pay
directly to each LC Issuer upon each issuance of a Revolving Letter of Credit, drawing
under, or amendment, extension, renewal or transfer of, a Revolving Letter of Credit issued
by it such amount as shall at the time of such issuance, drawing under, amendment,
extension, renewal or transfer be the processing charge that such LC Issuer is customarily
charging for issuances of, drawings under or amendments, extensions, renewals or transfers
of, letters of credit issued by it and other reasonable fees and expenses related to such
Revolving Letter of Credit.



     (e) LC Fees for Canadian Letters of Credit.




     (i) Standby Letters of Credit. The Canadian Borrowers agree to pay to the
Administrative Agent, for the ratable benefit of each Canadian Lender with a Canadian
Commitment based upon each such Canadian Lender’s Canadian Commitment Percentage, a fee in
respect of each Canadian Letter of Credit issued hereunder that is a Standby Letter of
Credit for the period from the date of issuance of such Canadian Letter of Credit until the
expiration date thereof (including any extensions of such expiration date that may be made
at the election of the account party or the beneficiary), computed for each day at a rate
per annum equal to (A) the Applicable Margin for Canadian Revolving Loans that are BA
Equivalent Loans in effect on such day times (B) the Stated Amount of such Canadian Letter
of Credit on such day. The foregoing fees shall be payable quarterly in arrears on the last
Business Day of each March, June, September and December and on the Commitment Termination
Date.




     (ii) Commercial Letters of Credit. The Canadian Borrowers agree to pay to the
Administrative Agent for the ratable benefit of each Canadian Lender with a Canadian
Commitment based upon each such Canadian Lender’s Canadian Commitment Percentage, a fee in
respect of each Canadian Letter of Credit issued hereunder that is a Commercial Letter of
Credit in an amount equal to (A) the Applicable Margin for Canadian Revolving Loans that are
BA Equivalent Loans in effect on the date of issuance times (B) the Stated Amount of such
Canadian Letter of Credit. The foregoing fees shall be payable on the date of issuance of
such Canadian Letter of Credit.




     (iii) Fronting Fees. The Canadian Borrowers agree to pay directly to each LC
Issuer a fee in respect of each standby Canadian Letter of Credit issued by it, payable on
the date of issuance (or any increase in the amount, or renewal or extension) thereof,
computed at the rate of 0.125% per annum on the Stated Amount thereof for the period from
the date of issuance (or increase, renewal or extension) to the expiration date
thereof



49









 







(including any extensions of such expiration date which may be made at the
election of the beneficiary thereof).




     (iv) Additional Charges of LC Issuers. The Company agrees to pay directly to
each LC Issuer upon each issuance of a Canadian Letter of Credit, drawing under, or
amendment, extension, renewal or transfer of, a Canadian Letter of Credit issued by it such
amount as shall at the time of such issuance, drawing under, amendment, extension, renewal
or transfer be the processing charge that such LC Issuer is customarily charging for
issuances of, drawings under or amendments, extensions, renewals or transfers of, letters of
credit issued by it and other reasonable fees and expenses related to such Canadian Letter
of Credit.



     (f) Arranger Fees. The Company shall pay to the Arrangers, on the Closing Date and
thereafter the fees set forth in the Arranger Fee Letter.



     (g) Computations of Fees. All computations of Acceptance Fees shall be based on the
actual number of days elapsed over a year of 365 days and all computations of other fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.



     2.04 Lending Offices. The Loans of each Type made by each Lender shall be made and
maintained at such Lender’s Applicable Lending Office for Loans of such Type. Any Lender may, with
notice to the Administrative Agent and the Company, fulfill its Commitment to lend to any Foreign
Borrower by causing an Affiliate of such Lender to act as the Lender in respect of such Foreign
Borrower (and such Lender shall, to the extent of the Loans made to and participations in Letters
of Credit issued for the account of such Foreign Borrower, be deemed for all purposes hereof to
have pro tanto assigned such Loans and participations to such Affiliate in compliance with the
provisions of Section 13.06 hereof).



     2.05 Several Obligations. The failure of any Lender to make any Loan to be made by it
on the date specified therefor shall not relieve any other Lender of its obligation to make its
Loan on such date, but neither the Administrative Agent nor any Lender shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender.



     2.06 Notes. Upon request of any Lender, (i) the Company will execute and deliver to
such Lender a Revolving Note with blanks appropriately completed in conformity herewith to evidence
the Company’s obligation to pay the principal of, and interest on, the Revolving Loans made to it
by such Lender, (ii) each Foreign Revolving Borrower will execute and deliver to such Lender a
Revolving Note with blanks appropriately completed in conformity herewith to evidence its
obligation to pay the principal of, and interest on, the Revolving Loans made to it by such Lender,
(iii) the Canadian Borrowers will execute and deliver to each Canadian Lender a BA Equivalent Note
and a Canadian Base Rate Note with blanks appropriately completed in conformity herewith to
evidence their obligation to pay the principal of, and interest on, the Canadian Revolving Loans
made to them by such Lender, and (iv) the Company will execute and deliver to the Swing Line Lender
a Swing Line Note with blanks appropriately completed in conformity herewith to evidence the
Company’s obligation to pay the principal of, and interest on, the Swing Loans made to it by the
Swing Line Lender; provided, however, that the decision



50









 







of any Lender to not request a Note shall
in no way detract from any
Borrower’s obligation to repay the Loans and other amounts owing by such Borrower to such
Lender.



     2.07 Use of Proceeds. The proceeds of the Loans shall be used by the Borrowers to
refinance existing indebtedness for borrowed money and for working capital and other general
corporate and limited liability company purposes, including, without limitation, to finance
acquisitions and to backstop the issuance of commercial paper. None of such proceeds shall be
used, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying
or carrying any margin stock (within the meaning of Regulation U or X of the Board of Governors of
the Federal Reserve System).



     2.08 Authority of Company; Liability of Foreign Borrowers.



     (a) Authority of the Company. Each Foreign Borrower hereby irrevocably designates and
appoints the Company as its agent under this Agreement and the other Loan Documents and hereby
irrevocably authorizes the Company to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers (including, but not limited to,
requesting a Loan or Letter of Credit for such Foreign Borrowers hereunder) and perform such duties
as such Foreign Borrower could exercise on its own (which the Company may, but shall not be
obligated to, do), together with such other powers as are reasonably incidental thereto, with all
such actions by the Company that purport to be on behalf of any Foreign Borrower being sufficient,
without any further action or authorization by such Foreign Borrower, to bind such Foreign
Borrower. The Administrative Agent, the Lenders and each LC Issuer shall be entitled to rely upon
all statements, certificates, notices, consents, affidavits, letters, cablegrams, telegrams,
facsimile transmissions, electronic transmissions, e-mails, telex or teletype messages, orders or
other documents or conversations furnished or made by the Company pursuant to any of the provisions
of this Agreement or any of the other Loan Documents, or otherwise in connection with the
transactions contemplated by the Loan Documents, as being made or furnished on behalf of, and with
the effect of irrevocably binding, each Foreign Borrower, without any duty to ascertain or to
inquire as to the authority of the Company in so doing. Notwithstanding the foregoing, the
Administrative Agent, the Lenders and each LC Issuer may also rely on or act in accordance with
directions or instructions coming directly from any such Foreign Borrower.



     (b) Liability of Foreign Borrowers. The parties intend that this Agreement shall in
all circumstances be interpreted to provide that each Foreign Borrower is liable only for Loans
made to such Foreign Borrower, interest on such Loans, such Foreign Borrower’s reimbursement
obligations with respect to any Letter of Credit issued for its account and its ratable share of
any of the other Obligations, including, without limitation, general fees, reimbursements and
charges hereunder and under any other Loan Document that are attributable to it. The liability of
any Foreign Borrower for the payment of any of the Obligations or the performance of its covenants,
representations and warranties set forth in this Agreement and the other Loan Documents shall be
several from but not joint with the Obligations of any other Borrower. Nothing in this Section is
intended to limit, nor shall it be deemed to limit, any of the liability of the Company for any of
the Obligations, whether in its primary capacity as a Borrower, pursuant to its guaranty
obligations set forth in Section 12, at law or otherwise.



51









 





     2.09 Eligibility and Addition/Release of Foreign Borrowers.



     (a) [Intentionally Deleted].



     (b) Eligibility of Foreign Subsidiaries. At any time after the Closing Date, a
Foreign Subsidiary of the Company may become a Foreign Borrower hereunder, provided that (i) only a
Foreign Subsidiary that is organized under the laws of Canada or any Province thereof may become a
Canadian Borrower and no Foreign Subsidiary organized under the laws of Canada or any Province
thereof may become a Foreign Revolving Borrower; (ii) prior to becoming a Foreign Borrower, the
Company has provided to the Administrative Agent and each Lender 10 days prior to the proposed
borrowing date for such Foreign Subsidiary a written request signed by the Company and such Foreign
Subsidiary, that such Foreign Subsidiary be designated as a Foreign Borrower pursuant to the terms
of this Agreement; (iii) such Foreign Subsidiary shall be a wholly-owned direct or indirect
Subsidiary of the Company (except for directors’ qualifying shares or nominal equity interests
required to be held by someone other than the Company or a Subsidiary under applicable law); (iv)
the Company and such Foreign Subsidiary shall have satisfied the conditions precedent set forth in
Section 7.03; (v) the addition of such Foreign Subsidiary as a Foreign Borrower hereunder shall not
result in withholding tax liability or other adverse tax consequences or adverse legal impact to
the Administrative Agent, any LC Issuer or any Lender hereunder; (vi) at the time of the request by
the Company that such Foreign Subsidiary be added as Foreign Borrower and after giving effect to
the addition of such Foreign Subsidiary as a Foreign Borrower, no Default or Event of Default shall
exist or begin to exist; and (vii) after the giving of any notice pursuant to this Section 2.09(b),
if the designation of such Foreign Borrower obligates the Administrative Agent or any Lender to
comply with “know your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, the Company shall, promptly upon the request
of the Administrative Agent or any Lender, supply such documentation and other evidence as is
reasonably requested by the Administrative Agent or any Lender in order for the Administrative
Agent or such Lender to carry out and be satisfied it has complied with the results of all
necessary “know your customer” or other similar checks under all applicable laws and regulations.



     (c) Notification to Lenders. Upon satisfaction by the Company and any Foreign
Subsidiary of the requirements set forth in clause (b) above, and the Administrative Agent’s
satisfaction that the addition of such Foreign Subsidiary as a Foreign Borrower hereunder is
appropriately documented pursuant to this Agreement and the other Loan Documents, the
Administrative Agent shall promptly notify the Company, such Foreign Subsidiary and the Lenders
thereof, and shall notify the Lenders whether such Foreign Subsidiary is a Canadian Borrower or
Foreign Revolving Borrower, whereupon such Foreign Subsidiary shall be designated a “Foreign
Borrower” pursuant to the terms and conditions of this Agreement, and such Foreign Subsidiary shall
become bound by all representations, warranties, covenants, provisions and conditions of this
Agreement and each other Loan Document applicable to the Foreign Borrowers as if such Foreign
Borrower had been the original party making such representations, warranties and covenants.



     (d) Release of Foreign Borrowers. Upon written request of the Company, a Foreign
Borrower (other than RPM Canada) may at any time be released as a Foreign Borrower
hereunder, so long as (i) such Foreign Borrower does not have any Credit Facility Exposure



52









 







owing to any Lender or LC Issuer at such time and has paid all accrued and unpaid interest and
fees, if any, owing by it, and (ii) no Event of Default under Section 10.01 (e), (f) or (g) hereof
shall exist at such time. No such release shall be effective until confirmed by the Administrative
Agent to the Company and the Lenders in writing. The Lenders hereby authorize the Administrative
Agent to release such Foreign Borrower in accordance with the terms and conditions of this subpart
and agree that the Administrative Agent may execute and deliver such documents or agreements as the
Administrative Agent shall deem necessary or appropriate in connection therewith. No release of a
Foreign Borrower shall affect the Company’s obligations under Section 12 of this Agreement.



     SECTION
3. BORROWINGS, CONVERSIONS AND PREPAYMENTS.



     3.01 Borrowings.



     (a) Loans. The Company shall request all borrowings, continuations and/or conversions
of Loans hereunder and shall give the Administrative Agent notice of such borrowings, continuations
and/or conversions as provided in Section 5.05 hereof.



     (b) Funding of Loans.




     (i) With respect to any Revolving Loan, not later than 2:00 p.m. Cleveland, Ohio time
on the date specified for each such borrowing hereunder, each Lender shall make available
the amount of the Revolving Loan to be made by it on such date to the Administrative Agent,
at the Principal Office in immediately available funds, for the account of the applicable
Borrower. The amount so received by the Administrative Agent shall, subject to the terms
and conditions of this Agreement, be made available to the applicable Borrower by depositing
the same, in immediately available funds, in an account designated by such Borrower.




     (ii) With respect to Canadian Revolving Loans, no later than 2:00 p.m. (local time at
the Canadian Payment Office) on the date specified for each borrowing hereunder, each
Canadian Lender will make available its proportionate share, if any, of each such borrowing
of Canadian Revolving Loans (which in the case of BA Equivalent Loans shall be the amount of
BA Discount Proceeds due by such Canadian Lender with respect to such BA Equivalent Loans)
requested to be made on such date to the Administrative Agent at the Canadian Payment Office
in Canadian Dollars and in immediately available funds and the Canadian Administrative
Branch of the Administrative Agent promptly will make available to the appropriate Canadian
Borrower by depositing to its account at the Canadian Payment Office (or such other account
in Canada as such Canadian Borrower shall specify) the aggregate of the amounts so made
available in the type of funds received; provided, however, that the Acceptance Fee payable
by the Canadian Borrowers to each Canadian Lender pursuant to Section 2.03(c) in respect of
each BA Equivalent Loan made by such Canadian Lender to the Canadian Borrowers shall be set
off against the BA Discount Proceeds payable by such Canadian Lender pursuant to this
subpart.



53









 






     (iii) With respect to any Swing Loan, the amount of such Swing Loan shall, subject to
the terms and conditions of this Agreement, be made available to the Company by depositing
the same, in immediately available funds, in an account designated by the Company.



     (c) Minimum Borrowing Amount. The aggregate principal amount of each borrowing of
Loans by any Borrower shall not be less than, (i) with respect to any Base Rate Loan or Canadian
Base Rate Loan, $1,000,000 (or the Dollar Equivalent thereof in any Designated Foreign Currency),
with minimum increments thereafter of $500,000 (or the Dollar Equivalent thereof in any Designated
Foreign Currency), (ii) with respect to any Fixed Rate Loan $5,000,000 (or the Dollar Equivalent
thereof in any Designated Foreign Currency), with minimum increments thereafter of $1,000,000 (or
the Dollar Equivalent thereof in any Designated Foreign Currency), and (iii) with respect to any
Swing Loan (other than an Automatic Swing Loan), $500,000, with minimum increments thereafter of
$250,000 (provided that there are no minimum borrowing requirements with respect to any Automatic
Swing Loan), except that any borrowing of Loans may be in the aggregate amount of the unused
portion of the applicable Commitments (borrowings of Loans of different Types or, in the case of
Fixed Rate Loans, having different Interest Periods, at the same time hereunder to be deemed
separate borrowings for purposes of the foregoing, one for each Type or Interest Period).



     (d) Maximum Borrowings. More than one borrowing of Loans may be incurred by the
Borrowers on any day; provided, however, that (i) if there are two or more such borrowings on a
single day by the same Borrower that consist of Fixed Rate Loans, each such borrowing shall have a
different initial Interest Period, and (ii) at no time shall there be more than 12 Fixed Rate Loans
outstanding hereunder.



     3.02 Prepayments and Conversions.



     (a) Optional Prepayments and Conversions.




     (i) Each Borrower shall have the right to prepay Loans or to convert Loans of one Type
into Loans of another Type, at any time or from time to time, provided that: (i) the
applicable Borrower shall give the Administrative Agent notice of each such prepayment or
conversion as provided in Section 5.05 hereof, (ii) except to the extent required pursuant
to Section 6.04 hereof, Fixed Rate Loans may be prepaid or converted only on the last day of
an Interest Period for such Loans, and (iii) no Foreign Currency Loan may be converted into
a Base Rate Loan, a Eurodollar Loan or a Foreign Currency denominated in a different
Designated Foreign Currency.




     (ii) Each conversion and prepayment of principal of Loans under this Section 3.02(a)
shall be in an aggregate principal amount equal to, (A) in the case of any Base Rate Loan or
Canadian Base Rate Loan, $1,000,000 (or the Dollar Equivalent thereof in any Designated
Foreign Currency), with minimum increments thereafter of $500,000 (or the Dollar Equivalent
thereof in any Designated Foreign Currency), (B) in the case of any Fixed Rate Loan,
$5,000,000 (or the Dollar Equivalent thereof in any Designated Foreign Currency), with
minimum increments thereafter of $1,000,000 (or the Dollar Equivalent thereof in any
Designated Foreign Currency), and (C) in the case of any Swing Loan,



54









 







$500,000, with minimum increments thereafter of $250,000 (conversions or prepayments of
Loans of different Types or, in the case of Fixed Rate Loans, having different Interest
Periods, at the same time hereunder to be deemed separate conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period).



     (b) Mandatory Prepayments; Cash Collateralization.




     (i) If on any date (after giving effect to any other payments on such date) (A) the
Aggregate Credit Facility Exposure exceeds the aggregate of the Total Revolving Commitment
plus the Total Canadian Commitment, (B) the Revolving Exposure of any Lender exceeds
such Lender’s Revolving Commitment, (C) the Aggregate Revolving Exposure exceeds the Total
Revolving Commitment, (D) the Canadian Facility Exposure of any Canadian Lender exceeds such
Canadian Lender’s Canadian Commitment, (E) the Aggregate Canadian Facility Exposure exceeds
the Total Canadian Commitment, or (F) the Swing Line Facility Exposure exceeds the Swing
Line Commitment then, in the case of each of the foregoing, the applicable Borrower
or the Company shall prepay on such date the principal amount of Loans and, after Loans have
been paid in full, Unpaid Drawings, in an aggregate amount at least equal to such excess and
conforming in the case of partial prepayments of Loans to the requirements as to the amounts
of partial prepayments of Loans that are contained in subpart (a) above; provided, however,
that if such excess results solely from fluctuations in the exchange rates related to any
Designated Foreign Currency or Designated Foreign Currencies applicable to any of the Loans
or Unpaid Drawings, then neither the applicable Borrower nor the Company shall be obligated
to make a prepayment pursuant to this clause (i) unless and/or until (1) the Aggregate
Credit Facility Exposure exceeds 105% of the aggregate of the Total Revolving Commitment
plus the Total Canadian Commitment, (2) the Revolving Exposure of any Lender exceeds
105% of such Lender’s Revolving Commitment, (3) the Aggregate Revolving Exposure exceeds
105% of the Total Revolving Commitment, (4) the Canadian Facility Exposure of any Canadian
Lender exceeds 105% of such Canadian Lender’s Canadian Commitment, or (5) the Aggregate
Canadian Facility Exposure exceeds 105% of the Total Canadian Commitment.




     (ii) If on any date (i) the Revolving LC Outstandings exceed the Revolving LC
Commitment Amount or (ii) the Canadian LC Outstandings exceed the Canadian LC Commitment
Amount, then the applicable LC Obligor shall pay to the Administrative Agent an
amount in cash equal to such excess and the Administrative Agent shall hold such payment as
security for the reimbursement obligations of the applicable LC Obligors hereunder in
respect of Letters of Credit; provided, however, that if such excess results solely from
fluctuations in the exchange rates related to any Designated Foreign Currency or Designated
Foreign Currencies applicable to any of the Revolving LC Outstandings or Canadian LC
Outstandings, then the applicable LC Obligor shall not be obligated to make a cash payment
to the Administrative Agent pursuant to this clause (ii) unless and/or until such Revolving
LC Outstandings or Canadian LC Outstandings equal or exceed 105% of the LC Commitment
Amount.



55









 





     (c) Breakage and Other Compensation. Any prepayment made pursuant to this Section
shall be accompanied by any amounts payable in respect thereof under Section 6.05 hereof.



     SECTION
4. PAYMENTS OF PRINCIPAL AND INTEREST.



     4.01 Repayment of Loans.



     (a) All of the Loans (other than Swing Loans) shall mature no later than the Commitment
Termination Date.



     (b) Each Swing Loan shall mature on the Swing Loan Maturity Date applicable thereto.



     4.02 Interest. The applicable Borrower will pay to the Administrative Agent for the
account of each Lender interest on the unpaid principal amount of each Loan (other than BA
Equivalent Loans) made by such Lender to such Borrower for the period commencing on the date of
such Loan to but excluding the date such Loan shall be paid in full, at the following rates per
annum:



     (a) if such Loan is a Base Rate Loan, the Base Rate;



     (b) if such Loan is a Eurodollar Loan, the Eurodollar Rate plus the Applicable Margin;



     (c) if such Loan is a Canadian Base Rate Loan, the Canadian Base Rate;



     (d) if such Loan is a Foreign Currency Loan, the applicable Adjusted Foreign Currency Rate
plus the Applicable Margin; and



     (e) if such Loan is a Swing Loan, the Federal Funds Rate plus the Applicable Margin.



     Notwithstanding the above provisions, if an Event of Default has occurred which has not been
cured or waived in writing in accordance with Section 13.01 hereof, upon written notice by the
Administrative Agent (which notice the Administrative Agent shall give at the direction of the
Majority Lenders), (i) all outstanding amounts of principal and, to the extent permitted by law,
all overdue interest, in respect of each Loan shall bear interest, payable on demand, at a rate per
annum equal to the Post-Default Rate, and (ii) the fees applicable to Revolving LC Outstandings and
Canadian LC Outstandings shall be increased by an additional 2% per annum in excess of the fees
otherwise applicable thereto. In addition, if any Unpaid Drawing or any amount (other than amounts
as to which the foregoing subparts (i) and (ii) are applicable) payable by any Borrower under the
Loan Documents is not paid when due, upon written notice by the Administrative Agent (which notice
the Administrative Agent shall give at the direction of the Majority Lenders), such amount shall
bear interest, payable on demand, at the Post-Default Rate.



     Accrued interest on each Loan shall be payable (i) if such Loan is a Base Rate Loan, on each
Quarterly Date, (ii) if such Loan is a Fixed Rate Loan (other than a BA Equivalent Loan),



56









 







on the last day of the Interest Period for such Loan (and, if such Interest Period exceeds
three months’ duration, quarterly, commencing on the first quarterly anniversary of the first day
of such Interest Period), (iii) if such Loan is a Swing Loan, on the Swing Loan Maturity Date
applicable thereto, (iv) if such Loan is a Canadian Base Rate Loan, in arrears on the last Business
Day of each month, and (v) in any event, upon the payment, prepayment or conversion thereof, but
only on the principal so paid or prepaid or converted; provided that interest payable at the
Post-Default Rate shall be payable from time to time on demand of the Administrative Agent or the
Majority Lenders. Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall notify the Lenders and the Company thereof.



     Notwithstanding the foregoing provisions of this Section 4.02, if at any time the rate of
interest set forth above on any Loan of or other obligation payable to any Lender (the “Stated
Rate”) exceeds the maximum non-usurious interest rate permissible for such Lender to charge
commercial borrowers under applicable law (the “Maximum Rate” for such Lender), the rate of
interest charged on such Loan of or other obligation payable to such Lender hereunder shall be
limited to the Maximum Rate for such Lender.



     If the Stated Rate for any Loan of a Lender that has theretofore been subject to the preceding
paragraph at any time is less than the Maximum Rate for such Lender, the principal amount of such
Loan shall bear interest at the Maximum Rate for such Lender until the total amount of interest
paid to such Lender or accrued on its Loans hereunder equals the amount of interest which would
have been paid to such Lender or accrued on such Lender’s Loans hereunder if the Stated Rate had at
all times been in effect.



     If, upon payment in full of all amounts payable hereunder, the total amount of interest paid
to any Lender or accrued on such Lender’s Loans under the terms of this Agreement is less than the
total amount of interest which would have been paid to such Lender or accrued on such Lender’s
Loans if the Stated Rate had, at all times, been in effect, then the applicable Borrower shall, to
the extent permitted by applicable law, pay to the Administrative Agent for the account of such
Lender an amount equal to the difference between (a) the lesser of (i) the amount of interest which
would have accrued on such Lender’s Loans if the Maximum Rate for such Lender had at all times been
in effect or (ii) the amount of interest which would have accrued on such Lender’s Loans if the
Stated Rate had at all times been in effect and (b) the amount of interest actually paid to such
Lender or accrued on its Loans under this Agreement.



     If any Lender ever receives, collects or applies as interest any sum in excess of the Maximum
Rate for such Lender, such excess amount shall be applied to the reduction of the principal balance
of its Loans or to other amounts (other than interest) payable hereunder, and if no such principal
is then outstanding, such excess or part thereof remaining shall be paid to the Company.



     SECTION 5. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.



     5.01 Payments. Except to the extent otherwise provided herein, (i) all payments of
principal, interest and other amounts to be made by the Company or any other Borrower
hereunder and under the Notes shall be made in Dollars, in immediately available funds, to the



57









 







Administrative Agent at the Principal Office, not later than 11:00 a.m. Cleveland, Ohio time on the
date on which such payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day), (ii) all payments
(including prepayments) to any Lender of the principal of or interest on any Foreign Currency Loan
shall be made in the same Designated Foreign Currency as the original Loan and with respect to any
Letter of Credit issued in a Designated Foreign Currency, (iii) all Unpaid Drawings with respect to
each Letter of Credit shall be made in the same currency in which each such Letter of Credit was
issued, and (iv) all payments of principal, interest and other amounts to be made by the Canadian
Borrowers hereunder and under the Notes shall be made in Canadian Dollars (other than payment of
facility fees pursuant to Section 2.03(a)(ii) hereof, which must be paid in Dollars), in
immediately available funds, to the Canadian Payment Office, not later than 11:00 a.m. local time
at the Canadian Payment Office time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on the next succeeding
Business Day). The Administrative Agent may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account of the applicable
Borrower with the Administrative Agent. The Borrowers shall, at the time of making each payment
hereunder or under any Note, specify to the Administrative Agent the Loans or other amounts payable
by the Borrowers hereunder to which such payment is to be applied (and in the event that it fails
to so specify, or if an Event of Default has occurred and is continuing, the Administrative Agent
may apply such payment as it may elect in its sole discretion to amounts then due, but subject to
the other terms and conditions of this Agreement, including, without limitation, Sections 5.02 and
10.02 hereof). Each payment received by the Administrative Agent hereunder or under any Note for
the account of a Lender shall be paid promptly to such Lender, in immediately available funds, for
the account of such Lender’s Applicable Lending Office. If the due date of any payment hereunder
or under any Note would otherwise fall on a day which is not a Business Day such date shall be
extended to the next succeeding Business Day and interest shall be payable for any principal so
extended for the period of such extension.



     5.02 Pro Rata Treatment.



     (a) Revolving Loans. Except to the extent otherwise provided herein: (i) each
borrowing from the Lenders under Section 2.01(a) hereof shall be made from the Lenders with
Revolving Commitments, each payment of facility fees under Section 2.03(a)(i) and (b)(i) hereof
shall be made for the account of such Lenders, and each termination or reduction of the Revolving
Commitments under Section 2.02 hereof shall be applied to the Revolving Commitments of the Lenders,
pro rata according to the Lenders’ respective Revolving Percentages; (ii) each payment by a
Revolving Borrower of principal of or interest on Revolving Loans of a particular Type (other than
payments in respect of Revolving Loans of individual Lenders provided for by Section 6 hereof)
shall be made to the Administrative Agent for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of such Revolving Loans held by the Lenders; and (iii)
each conversion of Revolving Loans of a particular Type (other than conversions of Revolving Loans
of individual Lenders pursuant to Section 6.04 hereof) shall be made pro rata among the Lenders in
accordance with the respective principal amounts of such Revolving Loans held by the Lenders.



58









 





     (b) Canadian Revolving Loans. Except to the extent otherwise provided herein: (i)
each borrowing from the Canadian Lenders under Section 2.01(b) hereof shall be made from the
Canadian Lenders, each payment of facility fees under Section 2.03(a)(ii) and (b)(ii) hereof shall
be made for the account of the Canadian Lenders, and each termination or reduction of the Canadian
Commitments under Section 2.02 hereof shall be applied to the Canadian Commitments of the Canadian
Lenders, pro rata according to the Canadian Lenders’ respective Canadian Commitment Percentages;
(ii) each payment by a Canadian Borrower of principal of or interest on Canadian Revolving Loans of
a particular Type (other than payments in respect of Canadian Revolving Loans of individual
Canadian Lenders provided for by Section 6 hereof) shall be made to the Canadian Administrative
Branch of the Administrative Agent for the account of the Canadian Lenders pro rata in accordance
with the respective unpaid principal amounts of such Canadian Revolving Loans held by the Canadian
Lenders; and (iii) each conversion of Canadian Revolving Loans of a particular Type (other than
conversions of Canadian Revolving Loans of individual Canadian Lenders pursuant to Section 6.04
hereof) shall be made pro rata among the Canadian Lenders in accordance with the respective
principal amounts of such Canadian Revolving Loans held by the Canadian Lenders.



     (c) Swing Loans. Except to the extent otherwise provided herein, each payment by the
Company of principal of or interest on Swing Loans shall be made to the Administrative Agent.



     5.03 Computations. All computations of interest on Fixed Rate Loans (other than BA
Equivalent Loans) and Swing Loans hereunder shall be made on the actual number of days elapsed over
a year of 360 days, all computations of interest on Base Rate Loans and Unpaid Drawings hereunder
shall be made on the actual number of days elapsed over a year of 365 or 366 days, as applicable,
and all computations of the Applicable BA Discount Rate with respect to BA Equivalent Loans shall
be made on the actual number of days elapsed in a year of 365 days. For purposes of this Agreement
and disclosure under the Interest Act (Canada), whenever interest to be paid on a Canadian
Revolving Loan is to be calculated on the basis of a period of time that is less than a calendar
year, the yearly rate of interest to which the rate determined pursuant to such calculation is
equivalent is the rate so determined multiplied by the actual number of days in the calendar year
in which the same is to be ascertained and divided by such lesser period of time.



     5.04 No Setoff, Counterclaim or Defense. All payments made by any Borrower hereunder,
under any Note or any other Loan Document, shall be made without setoff, counterclaim or other
defense.



     5.05 Certain Notices. Notices to (a) the Administrative Agent of terminations or
reductions of Commitments, or (b) the Administrative Agent of borrowings, conversions and
prepayments of Loans and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 12:00 noon Cleveland, Ohio
time on the number of Business Days prior to the date of the relevant termination, reduction,
borrowing, conversion and/or prepayment specified below:



59









 





	 	 	 	 	 
	 	 	NUMBER OF
	 	 	BUSINESS DAYS
	NOTICE	 	PRIOR
	Termination or reduction of Commitments
	 	 	3	 
	Borrowing or prepayment of, or conversion of, or into, Base
Rate Loans or Swing Loans
	 	 	0	 
	Borrowing or prepayment of, conversion of, or into, Canadian
Base Rate Loans
	 	 	1	 
	Borrowing or prepayment of, conversion of, or into, or
duration of Interest Period for, Fixed Rate Loans
	 	 	3	 






     Each notice of termination or reduction shall specify the amount of the Commitments to be
terminated or reduced. Each notice of borrowing, conversion or prepayment shall specify the
Borrower, the amount and Type of the Loans to be borrowed, converted or prepaid (subject to
Sections 3.02 and 5.04 hereof), the date of borrowing, conversion or prepayment (which shall be a
Business Day), in the case of Fixed Rate Loans, the duration of the Interest Period therefor
(subject to the definition of Interest Period), in the case of Swing Loans, the Swing Loan Maturity
Date applicable thereto, and with respect to Foreign Currency Loans, the Designated Foreign
Currency applicable thereto. Each such notice of duration of an Interest Period shall specify the
Loans to which such Interest Period is to relate. The Administrative Agent shall promptly notify
the affected Lenders of the contents of each such notice (other than a notice relating solely to
Swing Loans). In the event that any Borrower fails to select the duration of any Interest Period
for any Fixed Rate Loans within the time period and otherwise as provided in this Section 5.05,
such Loans (if outstanding as Fixed Rate Loans) will be automatically converted into Base Rate
Loans on the last day of the then current Interest Period for such Loans or (if outstanding as Base
Rate Loans) will remain as, or (if not then outstanding) will be made as, Base Rate Loans;
provided, however, that, notwithstanding the foregoing, a Foreign Currency Loan may not be
converted into a Base Rate Loan and, if not continued at the end of the applicable Interest Period,
must be repaid by the applicable Borrower in full at the end of such Interest Period.



     5.06 Non-Receipt of Funds by the Administrative Agent. Unless the Administrative
Agent shall have been notified by a Lender or the Company (the “Payor”) prior to the date
on (or, in the case of Base Rate Loans or Swing Loans, prior to the time by) which such Lender is
to make payment to the Administrative Agent of the proceeds of a Loan to be made by it hereunder or
any Borrower is to make a payment to the Administrative Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein called the “Required Payment”),
which notice shall be effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that the Required Payment
has been made and may, in reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient on such date (or at such time) and, if the Payor
has not in fact made the Required Payment to the Administrative Agent or the Swing Line Lender, the
recipient of such payment shall, on demand, pay to the Administrative Agent the amount made
available to it together with interest thereon in
respect of



60









 







the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent receives such amount at a rate per
annum equal to the Federal Funds Rate for such period.



     5.07 Sharing of Payments, Etc.



     (a) Generally.




     (i) Subject to subpart (c) below, if at any time any Lender receives any amount (other
than amounts that are received from a Canadian Borrower with respect to the Canadian
Obligations and are subject to subpart (a)(ii) below) hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Loan
Documents, or otherwise) that is applicable to the payment of the principal of, or interest
on, the Loans (other than Swing Loans), LC Participations, Swing Loan Participations or fees
(other than fees that are intended to be paid solely to the Arrangers, the Administrative
Agent or a LC Issuer and amounts payable to a Lender under Section 6), of a sum that with
respect to the related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender (based on such Lender’s
ratable share thereof as determined in accordance with Section 5.02, Section 10.02 or
specifically set forth elsewhere in this Agreement) bears to the total of such Obligation
then owed and due to all of the Lenders immediately prior to such receipt, then such
Lender receiving such excess payment shall purchase for cash without recourse or warranty
from the other Lenders an interest in the Obligations (other than the Canadian Obligations)
to such Lenders in such amount as shall result in a proportional participation by all of the
Lenders in such amount.




     (ii) Canadian Facility. Subject to subpart (c) below, if at any time any
Canadian Lender receives any amount hereunder from the Canadian Borrowers (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or
banker’s lien, by counterclaim or cross action, by the enforcement of any right under the
Loan Documents, or otherwise) that is applicable to the payment of the principal of, or
interest on, the Canadian Revolving Loans, Canadian LC Participations or fees (other than
fees that are intended to be paid solely to LC Issuers and amounts payable to a Canadian
Lender under Section 6) of a sum that with respect to the related sum or sums received by
other Canadian Lenders is in a greater proportion than the total such Canadian Obligations
then owed and due to such Canadian Lender bears to the total of such Canadian Obligation
then owed and due to all of the Canadian Lenders immediately prior to such receipt,
then such Lender receiving such excess payment shall purchase for cash without
recourse or warranty from the other Canadian Lenders an interest in the Canadian Obligations
to such Canadian Lenders in such amount as shall result in a proportional participation by
all of the Canadian Lenders in such amount.



     (b) Recovery of Amounts. If any amount paid to any Lender pursuant to subparts (i) or
(ii) above is recovered in whole or in part from such Lender, such original purchase shall be
rescinded, and the purchase price restored ratably to the extent of the recovery.



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     (c) Sharing after Sharing Date. If at any time on or after the Sharing Date, the
Credit Facility Exposure owing to any Lender is greater than an amount equal to such Lender’s
Sharing Percentage of the Aggregate Credit Facility Exposure, then on such date each of the other
Lenders shall purchase from such Lender for cash at par an amount of the Obligations of such Lender
as shall be necessary such that the Credit Facility Exposure owing to such Lender is equal to the
amount of its Sharing Percentage of the Aggregate Credit Facility Exposure.



     (d) Consent of Borrowers. The Borrowers consent to the foregoing and agree, to the
extent they may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of such Borrower in the amount of such participation.



     5.08 Taxes.



     (a) Any and all payments by the Borrowers hereunder shall be made, in accordance with Section
5.01, 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 and the Administrative Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as “Taxes”). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) except as
provided in subsection (g) below, 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 5.08), such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower (or the Company on its behalf) shall pay the
full amount deducted to the relevant taxation authority or other authority in accordance with
applicable law.



     (b) In addition, each Borrower (or the Company on its behalf) will pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, the Notes or any other document referred to herein or
therein (hereinafter referred to as “Other Taxes”).



     (c) The Company and, subject to Section 2.08(b) hereof, each other Borrower (or the Company on
its behalf) will indemnify each Lender and the Administrative Agent for the full amount of Taxes or
Other Taxes (including related penalties, interest and expenses) imposed by any jurisdiction on
amounts payable under this Section 5.08 paid by such Lender or the Administrative 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.
This indemnification shall be made within 30 days from the




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date such Lender or the Administrative Agent (as the case may be) makes written demand
therefor. It is understood that Taxes and Other Taxes do not include any withholdings or other
obligations imposed on a Lender with respect to payments by such Lender to a participant in such
Lender’s Loans.




     (d) Within 30 days after the date of any payment of Taxes, the applicable Borrower (or the
Company on its behalf) or a Lender, in the case of any Taxes paid by such Lender, will furnish to
the Administrative Agent, at its address referred to in Section 13.02 hereof, the original or a
certified copy of a receipt evidencing payment thereof.



     (e) At the reasonable request of the Company, a Lender or the Administrative Agent shall apply
at the Company’s expense for a refund in respect of Taxes or Other Taxes previously paid or
deducted by such Borrower pursuant to this Section 5.08 if in the opinion of such Lender or
Administrative Agent, acting reasonably, there is a reasonable basis for such refund.
Notwithstanding the foregoing, none of the Lenders or the Administrative 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 or deducted by the Company or a Borrower and for which the Company has indemnified or
increased a payment to the Lender pursuant to this Section 5.08, such Lender shall within 30 days
after receipt of such refund, and to the extent permitted by applicable law, pay to the Company or
applicable Borrower the net amount of any such recovery after deducting taxes and expenses
attributable thereto.



     (f) Not later than the Closing Date or, in the case of any bank or financial institution that
becomes a Lender after the Closing Date pursuant to Section 13.06, the date of the instrument of
assignment pursuant to which such bank or financial institution became a Lender, and annually
thereafter or at such other times as the Administrative Agent or the Company may request, each
Lender with a Revolving Commitment organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Company 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 documents satisfactory to the Company and
the Administrative Agent indicating that all payments to be made to such Lender hereunder are not
subject to such taxes (an “Exemption Certificate”). In the case of payments to or for any
Lender with a Revolving Commitment organized under the laws of a jurisdiction outside the United
States, unless the Administrative Agent and the Company have received an Exemption Certificate from
such Lender, the Company, or the Administrative Agent if the Company has not withheld, may withhold
taxes from such payments at the applicable statutory rate; provided that if the Company has
withheld it shall so notify the Administrative Agent. If the Company is required to pay additional
amounts to any Lender pursuant to this Section 5.08, such Lender shall use reasonable efforts to
designate a different Applicable Lending Office if such designation will thereafter avoid the need
for any additional payments under this Section 5.08 and will not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender. A Lender with a Revolving Commitment which
ceases to be exempt from United States withholding taxes shall notify the Administrative Agent and
the Company promptly thereof.



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     (g) If a Lender organized under the laws of a jurisdiction outside the United States fails to
comply with the provisions of subsection (f) above, then the Company shall not have any obligation
to increase the sum payable to such Lender pursuant to Section 5.08(a) or to indemnify such Lender
pursuant to Section 5.08(b) for Taxes (including related penalties, interest and expenses) imposed
by the United States or any political subdivision thereof.



     SECTION
6. YIELD PROTECTION AND ILLEGALITY.



     6.01  Additional Costs.



     (a) Each Borrower (or the Company on its behalf) shall pay to the Administrative Agent for the
account of each Lender and each LC Issuer from time to time such amounts as such Lender or such LC
Issuer may determine to be necessary to compensate it for any costs incurred by such Lender or such
LC Issuer which such Lender or such LC Issuer determines are attributable to its making, issuing or
maintaining of any Fixed Rate Loans or Letters of Credit hereunder or its obligation to make or
issue any of such Loans or Letters of Credit hereunder, or any reduction in any amount receivable
by such Lender hereunder in respect of any of such Loans or Letters of Credit or such obligation
(such increases in costs and reductions in amounts receivable being herein called “Additional
Costs”), in each case resulting from any Regulatory Change which:




     (i) changes the basis of taxation of any amounts payable to such Lender or any LC
Issuer under this Agreement or its Notes or Letters of Credit in respect of any of such
Loans or Letters of Credit (other than changes which affect taxes measured by or imposed on
the overall net income of such Lender or such LC Issuer or of its Applicable Lending Office
for any of such Loans or Letters of Credit by the jurisdiction in which such Lender or such
LC Issuer has its principal office or such Applicable Lending Office); or




     (ii) imposes or modifies any reserve, special deposit, insurance assessment or similar
requirements relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Lender or any LC Issuer (including any of such Loans or
Letters of Credit or any deposits referred to in the definitions of “Eurodollar Base Rate”
in Section 1.01 hereof but excluding, with respect to any such Fixed Rate Loan, any such
requirements included in the applicable Eurodollar Reserve Requirement); or




     (iii) imposes any other condition affecting this Agreement (or any of such extensions
of credit or liabilities).



     Each LC Issuer and the Lenders each will notify the Company and each other applicable Borrower
(or the Company on its behalf), through the Administrative Agent of any event occurring after the
date of this Agreement which will entitle such Lender or such LC Issuer to compensation pursuant to
this Section 6.01(a) as promptly as practicable after it obtains knowledge thereof and determines
to request such compensation, and (if so requested by the Company through the Administrative Agent)
will designate a different Applicable Lending Office for the relevant Type of Fixed Rate Loans of
such Lender if such designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of



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such Lender, be disadvantageous to such Lender (provided that such Lender shall have no
obligation to so designate an Applicable Lending Office located in the United States of America).
Each Lender and/or LC Issuer, as applicable, will furnish the Company with a statement setting
forth the basis and amount of each request by such Lender or such LC Issuer for compensation under
this Section 6.01(a). If any Lender or LC Issuer requests compensation from any Borrower under
this Section 6.01(a), such Borrower may, by notice to such Lender or such LC Issuer, as applicable,
through the Administrative Agent, suspend the obligation of such Lender or LC Issuer to make
additional Fixed Rate Loans of the relevant Type or issue Letters of Credit to the Borrowers until
the Regulatory Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 6.04 hereof shall be applicable).




     (b) Without limiting the effect of the foregoing provisions of this Section 6.01, if, by
reason of any Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured
by the excess above a specified level of the amount of a category of deposits or other liabilities
of such Lender or LC Issuer which includes deposits by reference to which the interest rate on any
Type of Fixed Rate Loans is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Lender or LC Issuer which includes any Type of Fixed Rate Loans or
(ii) becomes subject to restrictions on the amount of such a category of liabilities or assets
which it may hold, then, if such Lender or LC Issuer so elects by notice to the Company (with a
copy to the Administrative Agent) and each other Borrower, as applicable, the obligation of such
Lender or LC Issuer to make Fixed Rate Loans of the relevant Type or issue Letters of Credit
hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which
case the provisions of Section 6.04 hereof shall be applicable).



     (c) Determinations and allocations by any Lender, or any LC Issuer for purposes of this
Section 6.01 of the effect of any Regulatory Change on its costs of maintaining its obligations to
make Loans or issue Letters of Credit or of making, issuing or maintaining Loans or Letters of
Credit or on amounts receivable by it in respect of Loans or Letters of Credit, and of the
additional amounts required to compensate such Lender or LC Issuer in respect of any Additional
Costs, shall be presumed correct absent manifest error.



     (d) Notwithstanding the foregoing, no Borrower shall be required to compensate any Lender or
LC Issuer for any Additional Costs incurred more than one year prior to the date that such Lender
or LC Issuer notifies such Borrower thereof, unless such Additional Costs were caused by the
retroactive application of a Regulatory Change to a date more than one year prior to the date of
such notice.



     6.02 Limitation on Types of Loans. Anything herein to the contrary notwithstanding,
if, with respect to any Fixed Rate Loans:



     (a) the Administrative Agent determines (which determination shall be conclusive) that
quotations of interest rates for the relevant deposits referred to in the definition of “Eurodollar
Base Rate” in Section 1.01 hereof are not being provided by the Reference Lenders in the relevant
amounts or for the relevant maturities for purposes of determining the rate of interest for such
Loans for Interest Periods therefor as provided in this Agreement; or



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     (b) the Majority Lenders determine (which determination shall be conclusive) and notify the
Administrative Agent that the relevant rates of interest referred to in the definition of
“Eurodollar Base Rate” in Section 1.01 hereof upon the basis of which the rates of interest for
such Loans are to be determined do not accurately reflect the cost to such Lenders of making or
maintaining such Loans for Interest Periods therefor;


then the Administrative Agent shall promptly notify the Company and each Lender thereof, and so
long as such condition remains in effect, the Lenders shall be under no obligation to make Fixed
Rate Loans of the relevant Type or to convert Base Rate Loans into Fixed Rate Loans of the relevant
Type and the Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Fixed Rate Loans of the relevant Type, either prepay such Loans or convert such Loans
into Base Rate Loans in accordance with Section 3.02 hereof.




     6.03 Illegality. Notwithstanding any other provision of this Agreement to the
contrary, in the event that it becomes unlawful for any Lender or its Applicable Lending Office to
(a) honor its obligation to make Fixed Rate Loans of any Type hereunder, or (b) maintain Fixed Rate
Loans of any Type hereunder, then such Lender shall promptly notify the Company thereof through the
Administrative Agent and such Lender’s obligation to make Fixed Rate Loans of such Type hereunder
shall be suspended until such time as such Lender may again make and maintain Fixed Rate Loans of
such Type (in which case the provisions of Section 6.04 hereof shall be applicable).



     6.04 Substitute Base Rate Loans. If the obligation of any Lender to make Fixed Rate
Loans of any Type shall be suspended pursuant to Section 6.01, 6.02 or 6.03 hereof, all Loans which
would otherwise be made by such Lender as Fixed Rate Loans of such Type shall be made instead as
Base Rate Loans (and, if an event referred to in Section 6.01(b) or 6.03 hereof has occurred and
such Lender so requests by notice to the Company with a copy to the Administrative Agent, each
Fixed Rate Loan of such Type of such Lender then outstanding shall be automatically converted into
a Base Rate Loan on the date specified by such Lender in such notice) and, to the extent that Fixed
Rate Loans of such Type are so made as (or converted into) Base Rate Loans, all payments of
principal which would otherwise be applied to such Fixed Rate Loans of such Type shall be applied
instead to such Base Rate Loans, except that no Foreign Currency Loan maybe converted into a Base
Rate Loan hereunder and each such Foreign Currency Loan must be repaid in full by the applicable
Borrower.



     6.05 Compensation. Each Borrower (or the Company on its behalf) shall pay to the
Administrative Agent for the account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the reasonable opinion of
such Lender) to compensate it for any loss, cost or expense incurred by it as a result of:



     (a) any payment, prepayment or conversion of a Fixed Rate Loan made by such Borrower on a date
other than the last day of an Interest Period for such Loan; or



     (b) any failure by any Borrower to borrow a Fixed Rate Loan to be made by such Lender on the
date for such borrowing specified in the relevant notice of borrowing under Section 5.05 hereof or
Section 3.03 hereof.



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Notwithstanding the foregoing, no Borrower shall be required to compensate any Lender for any such
loss, cost or expense incurred more than one year prior to the date that such Lender notifies such
Borrower thereof.




     6.06 Capital Adequacy. If any Lender shall determine that the adoption or
implementation of any applicable law, rule, regulation or treaty 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 Applicable Lending Office) with any request or
directive issued after the date hereof 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 capital of such Lender or any Person controlling such Lender (a
“Parent”) as a consequence of its obligations hereunder to a level below that which such
Lender (or its Parent) could have achieved but for such adoption, change or compliance (taking into
consideration its policies 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
Administrative Agent), each applicable Borrower (or the Company on its behalf) shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such reduction. A
statement of any Lender claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be presumed correct absent manifest error. In
determining such amount, such Lender may use any reasonable averaging and attribution methods.



     6.07 Substitution of Lender. If (i) any Borrower is required to withhold with respect
to any Lender pursuant to Section 5.08, (ii) any Lender has demanded compensation under Section
6.01(a) or Section 6.06 or (iii) the obligation of any Lender to make Fixed Rate Loans has been
suspended pursuant to Section 6.01(b)(ii) or Section 6.03, and so long as no Default shall have
occurred and be continuing, the Company shall have the right to request one or more substitute
banks, financial institutions or funds (which may be one or more of the Lenders) reasonably
satisfactory to the Administrative Agent to purchase such Lender’s Note and assume such Lender’s
Commitment hereunder by paying to such Lender an amount equal to all of the obligations of all
Borrowers to such Lender hereunder including, without limitation, principal and accrued interest
and fees. Any costs or expenses incurred by the Administrative Agent in connection with assisting
the Company pursuant hereto shall be paid upon demand by the Company. The Administrative Agent
shall respond promptly to any request by the Company for its consent to a substitute for a Lender.



     SECTION 7. CONDITIONS PRECEDENT.



     7.01 Initial Loans. The obligation of the Lenders to make Loans, and of each LC
Issuer to issue Letters of Credit, is subject to the satisfaction of the following conditions
precedent:



     (a) Organizational Documents. Each Borrower shall have delivered to the
Administrative Agent an original certified copy of its Organizational Documents, certified by an
officer of each Borrower as being true and correct and in full force and effect.



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     (b) Incumbency. Each Borrower shall have delivered to the Administrative Agent a
certificate in respect of the name and signature of each of the officers (i) who is authorized to
sign on its behalf this Agreement and the Notes and (ii) who will, until replaced by another
officer or officers duly authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection with this Agreement and
the Notes. The Administrative Agent, each LC Issuer and each Lender may conclusively rely on such
certificates until it receives notice in writing from such Borrower to the contrary.



     (c) Notes. The Administrative Agent shall have received the appropriate Note or Notes
for each Lender, duly completed and executed.



     (d) Opinion of Counsel to the Borrowers. The Administrative Agent shall have received
an opinion of counsel to each Borrower, each in form and substance satisfactory to the
Administrative Agent and the Lenders.



     (e) Counterparts. The Administrative Agent shall have received counterparts of this
Agreement executed and delivered by or on behalf of each of the parties hereto (or, in the case of
any Lender as to which the Administrative Agent shall not have received such a counterpart, the
Administrative Agent shall have received evidence satisfactory to it of the execution and delivery
by such Lender of a counterpart hereof).



     (f) Existing Credit Agreement. The Administrative Agent shall have received evidence
that all amounts outstanding under the credit agreement dated as of November 19, 2004, among the
Company, the foreign borrowers party thereto, the lenders party thereto and National City Bank, as
administrative agent, as amended, shall have been paid in full and all commitments thereunder shall
have terminated.



     (g) Fees and Fee Letters. The Company shall have (i) executed and delivered to the
Administrative Agent the Arranger Fee Letter and shall have paid to the Administrative Agent, for
the benefit of itself and the Arrangers, the fees required to be paid by it on the Closing Date,
(ii) executed and delivered to the Administrative Agent the Closing Fee Letter and shall have paid
to the Administrative Agent, for the benefit of the Lenders, the fees required to be paid therein,
and (iii) paid or caused to be paid all reasonable fees and expenses of the Administrative Agent in
connection with the consummation of the transactions contemplated in this Agreement.



     (h) Other Documents. The Administrative Agent shall have received such other
documents relating to the transactions contemplated hereby as the Administrative Agent may
reasonably request.



     7.02 Initial and Subsequent Loans. The obligation of each Lender to make any Loan,
and of the LC Issuer to issue any Letter of Credit, hereunder is subject to the satisfaction of the
following conditions precedent as of the date of the making of such Loan or the issuance of such
Letter of Credit both immediately before and after giving effect thereto:



     (a) no Default or Event of Default shall have occurred and be continuing; and



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     (b) the representations and warranties made by the Borrowers in this Agreement shall be true
in all material respects on and as of the date of the making of such Loan or the issuance of such
Letter of Credit, with the same force and effect as if made on and as of such date (except, in the
case of the representation and warranty contained in Section 8.02(d), as disclosed by the Company
to the Lenders in writing in the notice of borrowing relating to such Loan).



     Each notice of borrowing by any Borrower hereunder shall constitute a certification by the
Borrowers to the effect set forth in the preceding sentence (both as of the date of such notice and
as of the date of such borrowing).



     7.03 Conditions Precedent to Addition of Foreign Borrowers. The obligation of the
Lenders to make Loans, and of the LC Issuer to issue Letters of Credit, to any Foreign Borrower
that becomes a party to this Agreement pursuant to Section 2.09, is subject to the satisfaction of
each of the following conditions on or prior to the date any such Loan is made to, or Letter of
Credit is issued for the account of, such Foreign Borrower:



     (a) Joinder Agreement. Such Foreign Borrower shall have executed and delivered to the
Administrative Agent a joinder agreement, in form and substance satisfactory to the Administrative
Agent (as modified, amended or supplemented from time to time in accordance with the terms thereof
and hereof, a “Joinder Agreement”), pursuant to which such Foreign Borrower shall have
become a party to this Agreement.



     (b) Notes. Such Foreign Borrower shall have executed and delivered to the
Administrative Agent a Revolving Note, a Canadian Base Rate Note or a BA Equivalent Note, as the
case may be, for the account of each Lender that has requested a Note.



     (c) Corporate Resolutions and Approvals. The Administrative Agent shall have received
certified copies of the resolutions of the Board of Directors or equivalent governing body of such
Foreign Borrower, approving the Loan Documents to which such Foreign Borrower is or may become a
party, and of all documents evidencing other necessary corporate or limited liability company
action and governmental approvals, if any, with respect to the execution, delivery and performance
by such Foreign Borrower of the Loan Documents to which it is or may become a party.



     (d) Incumbency Certificates. The Administrative Agent shall have received a
certificate of the Secretary or an Assistant Secretary (or equivalent officers) of such Foreign
Borrower, certifying the names and true signatures of the officers of such Foreign Borrower
authorized to sign the Loan Documents to such Foreign Borrower is a party and any other documents
to which such Foreign Borrower is a party that may be executed and delivered in connection
herewith.



     (e) Organizational Documents. The Administrative Agent shall have received an
original certified copy of the Organizational Documents of such Foreign Borrower, certified by an
officer of such Foreign Borrower as being true and correct and in full force and effect.



     (f) Opinions of Counsel. The Administrative Agent shall have received such opinions
of counsel from counsel to such Foreign Borrower as the Administrative Agent shall



69









 




request, each of which shall be addressed to the Administrative Agent and each of the Lenders
and in form and substance satisfactory to the Administrative Agent.




     (g) Amendments to Loan Documents. The Administrative Agent shall have received such
amendments or other modifications to the Loan Documents, fully executed by the appropriate parties
thereto, that the Administrative Agent deems necessary or appropriate in connection with the
addition of such Foreign Borrower.



     (h) Miscellaneous. The Company and such Foreign Borrower shall have provided to the
Administrative Agent and the Lenders such other items and shall have satisfied such other
conditions as may be reasonably required by the Administrative Agent or the Lenders.



     SECTION 8. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants to the
Lenders, each LC Issuer and the Administrative Agent as follows:



     8.01 Corporate Existence. Each of the Company and its Subsidiaries (a) is a
corporation, partnership or limited liability company duly organized or formed, as applicable,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or
formation, as applicable; (b) has all requisite corporate, partnership or limited liability company
power, and has all governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed to be conducted, except in the
case of such licenses, authorizations, consents and approvals, where the failure to obtain them
would not have a Material Adverse Effect; and (c) is qualified to do business in all jurisdictions
in which the nature of the business conducted by it makes such qualification necessary and where
failure so to qualify would have a Material Adverse Effect.



     8.02 Information.



     (a) All information heretofore furnished by any Borrower to the Administrative Agent, any LC
Issuer or any Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby did not as of the date thereof and will not as of the Closing Date contain any
untrue statement of a material fact or assumption or omit to state a material fact or assumption
necessary in order to make the statements contained therein not misleading.



     (b) Without limiting the generality of paragraph (a):




     (i) The audited consolidated balance sheet of the Company and its Subsidiaries as of
May 31, 2006 and the audited consolidated statements of income, shareholders’ equity and
cash flows for the fiscal year ended May 31, 2006 (collectively, the “Financial
Statements”) have been prepared in accordance with generally accepted accounting
principles consistently applied. The Financial Statements fairly present the financial
position of the Company and its Subsidiaries as of May 31, 2006 and the results of their
operations and their cash flows for the fiscal year ended May 31, 2006 in conformity with
generally accepted accounting principles.




     (ii) The unaudited consolidated balance sheet of the Company and its Subsidiaries as of
August 31, 2006 and the unaudited consolidated statements of income, shareholders’ equity
and cash flows for the three months then ended have been prepared



70









 






in accordance with generally accepted accounting principles consistently applied, and
fairly present the financial position of the Company and its Subsidiaries as of August 31,
2006 and the results of their operations and their cash flows for the three months then
ended in conformity with generally accepted accounting principles (subject to normal
year-end adjustments).




     (iii) The Company and its Subsidiaries did not on the date of the balance sheet
referred to in clause (i) above, and will not on the Closing Date, have any material
contingent liabilities, material liabilities for taxes, unusual and material forward or
long-term commitments or material unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance sheet.



     (c) The Company has disclosed to the Lenders in writing any and all facts (other than general
economic and industry conditions) which have or may have a Material Adverse Effect.



     (d) Since May 31, 2006 no event has occurred and no condition has come into existence which
has had, or is reasonably likely to have, a Material Adverse Effect.



     8.03 Litigation. Except as disclosed in the Disclosure Documents, there are no legal
or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or
agency, now pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which in any manner draw into question the validity of any material provision of any Loan
Document. The disclosure of litigation to the Lenders pursuant to this Section does not
necessarily mean that such litigation is of the type described in this Section or that the Company
believes that such litigation has any merit whatsoever.



     8.04 No Breach. None of the execution and delivery of the Loan Documents, the
consummation of the transactions therein contemplated or compliance with the terms and provisions
thereof will conflict with or result in a breach of, or require any consent under, the
Organizational Documents of the Company or any of its Subsidiaries, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or governmental authority or
agency, or any Loan Document or other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which it is bound or to which it is subject, or constitute a
default under any such material agreement or instrument, or result in the creation or imposition of
any Lien upon any of the revenues or assets of the Company or any of its Subsidiaries pursuant to
the terms of any such agreement or instrument.



     8.05 Corporate Action. Each Borrower has all necessary corporate, partnership or
limited liability company power, as applicable, and authority to execute, deliver and perform its
obligations under the Loan Documents to which it is a party; the execution, delivery and
performance by each Borrower of the Loan Documents to which it is a party have been duly authorized
by all necessary corporate, partnership or limited liability company action, as applicable; and
this Agreement has been duly and validly executed and delivered by each Borrower and constitutes
the legal, valid and binding obligation of such Borrower and, on the Closing Date, each of the
other Loan Documents to which the Company is to be a party will constitute its legal, valid and
binding obligation, in each case enforceable in accordance with its



71









 




terms, except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights
generally and by general equitable principles.




     8.06 Approvals. Each of the Company and its Subsidiaries has obtained all
authorizations, approvals and consents of, and has made all filings and registrations with, any
governmental or regulatory authority or agency and any third party necessary for the execution,
delivery or performance by it of any Loan Document to which it is a party, or for the validity or
enforceability thereof.



     8.07 Regulations U and X. Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation U or X of the
Board of Governors of the Federal Reserve System) and no part of the proceeds of any Loan hereunder
will be used to purchase or carry any such margin stock.



     8.08 ERISA. The Company and each member of the Controlled Group have fulfilled their
obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable provisions of ERISA and
the Code with respect to each Plan. No such Person has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any contribution
or payment to any Plan or Multiemployer Plan, or made any amendment to any Plan, which has resulted
or could result in the imposition of a Lien or the posting of a bond or other security under ERISA
or the Code or (iii) incurred any liability under Title IV of ERISA (other than a liability to the
PBGC for premiums under Section 4007 of ERISA).



     8.09 Taxes. Each of the Company and its Subsidiaries has filed all United States
Federal income tax returns and all other material tax returns which are required to be filed by it
and has paid all taxes due pursuant to such returns or pursuant to any assessment received by it,
except to the extent the same may be contested as permitted by Section 9.02 hereof. There are no
material tax disputes or contests pending as of the Closing Date. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Company, adequate.



     8.10 Subsidiaries. Schedule 2 hereto is a complete and correct list, as of
the date of this Agreement, of all Subsidiaries of the Company and of all Investments held by the
Company or any of its Subsidiaries in any material joint venture or other similar Person. The
Company owns, free and clear of Liens, all outstanding shares of its Subsidiaries and all such
shares are validly issued, fully paid and non-assessable and the Company (or the respective
Subsidiary of the Company) also owns, free and clear of Liens, all such Investments.



     8.11 Investment Company Act. Neither the Company nor any of its Subsidiaries is an
investment company within the meaning of the Investment Company Act of 1940, as amended, or,
directly or indirectly, controlled by or acting on behalf of any Person which is an investment
company, within the meaning of said Act.



     8.12 [Intentionally Deleted.]



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     8.13 Ownership and Use of Properties. Each of the Company and its Subsidiaries will
have on the Closing Date and at all times thereafter, legal title or ownership of, or the right to
use pursuant to enforceable and valid agreements or arrangements, all tangible property, both real
and personal, and all franchises, licenses, copyrights, patents and know-how which is material to
the operation of its business as proposed to be conducted.



     8.14 Environmental Matters. Except as disclosed in the Disclosure Documents, neither
the Company nor any of its Subsidiaries has (i) failed to obtain any permits, certificates,
licenses, approvals, registrations and other authorizations which are required under any applicable
Environmental Law where failure to have any such permit, certificate, license, approval,
registration or authorization would have a Material Adverse Effect; (ii) failed to comply with the
terms and conditions of all such permits, certificates, licenses, approvals, registrations and
authorizations, and are also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables contained in any
applicable Environmental Law or in any notice or demand letter from any regulatory authority
issued, entered, promulgated or approved thereunder where failure to comply would have a Material
Adverse Effect; or (iii) failed to conduct its business so as to comply in all respects with
applicable Environmental Laws where failure to so comply would have a Material Adverse Effect. The
disclosure of any failure or alleged failure to the Lenders pursuant to this Section does not
necessarily mean that such failure is of the type described in this Section or that any such
allegation has any merit whatsoever.



     8.15 Anti-Terrorism Law Compliance. Neither the Company nor any of its Subsidiaries
is subject to or in violation of any law, regulation, or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the
USA Patriot Act) that prohibits or limits the conduct of business with or the receiving of funds,
goods or services to or for the benefit of certain Persons specified therein or that prohibits or
limits any Lender or LC Issuer from making any advance or extension of credit to any Borrower or
from otherwise conducting business with the Company or any of its Subsidiaries.



     SECTION 9. COVENANTS. Each Borrower agrees that, so long as any of the Commitments are in
effect and until payment in full of all Obligations, unless the Majority Lenders shall agree
otherwise as contemplated by Section 13.05 hereof:



     9.01 Information. The Company shall deliver to each of the Lenders:



     (a) as soon as available and in any event within 90 days after the end of each fiscal year of
the Company, consolidated statements of income, shareholders’ equity and cash flows of the Company
and its Subsidiaries for such year and the related consolidated balance sheet as at the end of such
year, setting forth in each case in comparative form the corresponding figures for the preceding
fiscal year, and accompanied by an opinion thereon of Ernst & Young LLP or other independent
certified public accountants of recognized national standing, which opinion shall state that said
consolidated financial statements fairly present in all material respects the consolidated
financial condition and results of operations of the Company and its Subsidiaries as at the end of,
and for, such fiscal year, provided that delivery of the Company’s annual report on Form 10-K shall
be deemed to satisfy the foregoing requirements;



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     (b) as soon as available and in any event within 45 days after the end of each fiscal quarter
of the Company other than the last fiscal quarter in each fiscal year, consolidated statements of
income, shareholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal
quarter and for the portion of the fiscal year ended at the end of such fiscal quarter, and the
related consolidated balance sheet as at the end of such fiscal quarter, accompanied, in each case,
by a certificate of a Senior Officer, which certificate shall state that said consolidated
financial statements fairly present in all material respects the consolidated financial condition
and results of operations of the Company in accordance with GAAP (except for footnotes of the type
required by the Securities and Exchange Commission to be included in quarterly reports on Form
10-Q), consistently applied, as at the end of, and for, such period (subject to normal year-end
audit adjustments), provided that delivery of the Company’s quarterly report on Form 10-Q shall be
deemed to satisfy the foregoing requirements;



     (c) promptly upon the mailing thereof to the shareholders of the Company generally, copies of
all financial statements, reports and proxy statements so mailed;



     (d) promptly upon the filing thereof, copies of all registration statements (other than any
registration statements on Form S-8 or its equivalent) and any reports which the Company shall have
filed with the Securities and Exchange Commission;



     (e) if and when the Company or any member of the Controlled Group (i) gives or is required to
give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given or required to be
given to the PBGC, (ii) receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or makes any amendment to any Plan which
has resulted or could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of a Senior Officer setting forth details as to such occurrence and action,
if any, which the Company or member of the Controlled Group is required or proposes to take;



     (f) promptly (and in any event within 3 Business Days) after a Senior Officer of the Company
knows that any Default or Event of Default has occurred and is continuing, a notice of such Default
or Event of Default, describing the same in reasonable detail;



     (g) promptly after a Senior Officer of the Company knows of a change in the Fitch Rating, S&P
Rating and/or Moody’s Rating of the Company, a notice of such change in the Fitch Rating, S&P
Rating and/or Moody’s Rating of the Company; and



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     (h) from time to time such other information regarding the financial condition, operations,
prospects or business of the Company or any Borrower as the Administrative Agent or any Lender
through the Administrative Agent may reasonably request.



     The Company will furnish to each Lender, at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of the Company executed by a
Senior Officer (i) to the effect that, to the best of his knowledge after due inquiry, no Default
or Event of Default has occurred and is continuing (or, if any Default or Event of Default has
occurred and is continuing, describing the same in reasonable detail) and (ii) setting forth in
reasonable detail the computations necessary to determine whether it was in compliance with
Sections 9.08 to 9.12, inclusive, and 9.16 hereof as of the end of the respective fiscal quarter or
fiscal year.



     9.02 Taxes and Claims. The Company will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any property belonging to it, prior
to the date on which penalties attach thereto, and all material lawful claims which, if unpaid,
might become a Lien upon the property of the Company or such Subsidiary, provided that neither the
Company nor such Subsidiary shall be required to pay any such tax, assessment, charge, levy or
claim the payment of which is being contested in good faith and by proper proceedings if it
maintains adequate reserves with respect thereto and if such contest, proceedings and reserves have
been described in a certificate of a Senior Officer delivered to the Lenders.



     9.03 Insurance. The Company will maintain, and will cause each of its Subsidiaries to
maintain, insurance with responsible companies in such amounts and against such risks as is usually
carried by companies of established repute engaged in the same or similar businesses, owning
similar properties, and located in the same general areas as the Company and its Subsidiaries.



     9.04 Maintenance of Existence; Conduct of Business. The Company will preserve and
maintain, and will cause each of its Subsidiaries to preserve and maintain, its corporate,
partnership or limited liability company existence, as applicable, and all of its rights,
privileges and franchises necessary or desirable in the normal conduct of its business, and will
conduct its business in a regular manner; provided that nothing herein shall prevent (i) the
consolidation or merger (and resulting dissolution) of any Subsidiary of the Company into the
Company so long as the Company is the surviving corporation, (ii) the consolidation or merger of
any Subsidiary of the Company into any other Subsidiary of the Company so long as, in the case of
such mergers or consolidations involving one or more Foreign Borrowers, either (A) a Foreign
Borrower is the surviving entity, or (B) to the extent a Foreign Borrower is not the surviving
corporation, such Foreign Borrower has been released in accordance with Section 2.09(d) hereof,
(iii) the sale of any Subsidiary of the Company which is not a Significant Subsidiary so long as,
in the case of any Foreign Borrower, such Foreign Borrower has been released in accordance with
Section 2.09(d) hereof, (iv) the termination of corporate, partnership or limited liability company
existence, dissolution or abandonment by the Company of any Subsidiary which is not a Significant
Subsidiary so long as, in the case of any Foreign Borrower, such Foreign Borrower



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has been released in accordance with Section 2.09(d) hereof, and (v) any sale, lease or
transfer of assets not prohibited by Section 9.10 hereof.




     9.05 Maintenance of and Access to Properties. The Company will keep, and will cause
each of its Subsidiaries to keep, all of its properties necessary in its business in good working
order and condition (having regard to the condition of such properties at the time such properties
were acquired by the Company or such Subsidiary), ordinary wear and tear excepted, and proper books
of record and account in which full, true and correct entries in conformity with GAAP shall be made
of all dealings and transactions in relation to its business activities, and will permit
representatives of the Lenders to inspect such properties and, upon reasonable notice and at
reasonable times, to examine and make extracts and copies from the books and records of the Company
and any such Subsidiary.



     9.06 Compliance with Applicable Laws. The Company will comply, and will cause each of
its Subsidiaries to comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental body or regulatory authority (including, without limitation, all
Environmental Laws), a breach of which would have a Material Adverse Effect, except where contested
in good faith and by proper proceedings.



     9.07 Litigation. The Company will promptly give to the Administrative Agent (which
shall promptly notify each Lender) notice in writing of all litigation and of all proceedings of
which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting
the Company or any of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.



     9.08 Leverage Ratio.



     (a) The Company will not permit Indebtedness of the Company and its Subsidiaries, determined
on a consolidated basis, on any date to exceed 65% of the sum of such Indebtedness and consolidated
shareholders’ equity of the Company and its Subsidiaries on such date.



     (b ) The Company will not permit Indebtedness of its Domestic Subsidiaries, determined on a
combined basis exclusive of Indebtedness to the Company and Indebtedness pursuant to receivables
securitizations incurred in accordance with the terms and conditions of this Agreement, on any date
to exceed 15% of consolidated shareholders’ equity of the Company and its Subsidiaries on such
date.



     9.09 Interest Coverage Ratio. The Company will not permit the ratio, calculated as at
the end of each fiscal quarter ending after the Closing Date for the four fiscal quarters then
ended, of EBITDA for such period to Interest Expense for such period to be less than 3.5:1.



     9.10 Mergers, Asset Dispositions, Etc. No Borrower will (i) consolidate or merge with
or into any other Person or (ii) sell, lease or otherwise transfer, directly or indirectly, in one
transaction or a series of related transactions, all or substantially all of its business or
assets; provided that (1) any Borrower may consolidate or merge with another Person if (A) such
Borrower is the entity surviving such merger and (B) immediately after giving effect to such
consolidation or merger, no Default or Event of Default shall have occurred and be continuing, (2)
any Borrower other than the Company may sell, lease or transfer all or substantially all of its



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business or assets to the Company or any other Borrower, and (3) nothing herein shall prevent
any of the transactions or events permitted under clauses (i)-(v) of Section 9.04.




     9.11 Liens. The Company will not, and will not permit any of its Subsidiaries to,
create or suffer to exist any Lien upon any property or assets, now owned or hereafter acquired,
securing any Indebtedness or other obligation, except:




     (i) Liens existing on the Closing Date and securing Indebtedness in an aggregate
principal amount not exceeding $10,000,000;




     (ii) Liens existing on other assets at the date of acquisition thereof or which attach
to such assets concurrently with or within 90 days after the acquisition thereof, securing
Indebtedness incurred to finance the acquisition thereof in an aggregate principal amount at
any time outstanding not exceeding $35,000,000;




     (iii) any Lien existing on any asset of any corporation at the time such corporation
becomes a Subsidiary of the Company or is merged or consolidated with or into the Company or
one of its Subsidiaries and not created in contemplation of such event;




     (iv) any Lien arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the foregoing clauses of this Section
9.11, provided that such Indebtedness is not increased and is not secured by any additional
assets;




     (v) other Liens arising in the ordinary course of the business of the Company or such
Subsidiary which are not incurred in connection with the borrowing of money or the obtaining
of advances or credit, do not secure any obligation in an amount exceeding $25,000,000 and
do not materially detract from the value of its property or assets or materially impair the
use thereof in the operation of its business;




     (vi) Liens not otherwise permitted by the foregoing clauses of this Section 9.11
securing Indebtedness in an aggregate principal or face amount at any date not to exceed
$40,000,000; and




     (vii) Liens incurred pursuant to receivables securitizations and related assignments
and sales of any income or revenues (including Receivables), including Liens on the assets
of any Receivables Subsidiary created pursuant to any receivables securitization and Liens
granted by the Company and its other Subsidiaries on Receivables in connection with the
transfer thereof, or to secure obligations owing by them, in respect of any such receivables
securitization; provided that (x) the amounts received by the Company and its other
Subsidiaries from such Receivables Subsidiary in connection with the sale or other transfer
of such Receivables would not under GAAP be accounted for as liabilities on a consolidated
balance sheet of the Company, and (y) the aggregate principal amount of the investments and
claims held at any time by all purchasers, assignees or other transferees of (or of
interests in) Receivables from any Receivables Subsidiary, and other rights to payment held
by such Persons, in all receivables securitizations shall not exceed $250,000,000.



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     9.12 Investments. The Company will not, and will not permit any of its Subsidiaries
to, make or permit to remain outstanding any advances, loans or other extensions of credit or
capital contributions (other than prepaid expenses in the ordinary course of business) to (by means
of transfers of property or assets or otherwise), or purchase or own any stocks, bonds, notes,
debentures or other securities of, any Person (all such transactions being herein called
“Investments”), except: (i) operating deposit accounts; (ii) Liquid Investments; (iii)
subject to Section 9.13 hereof, Investments in accounts and notes receivable acquired in the
ordinary course of business as presently conducted; (iv) Investments existing on the Closing Date
in Subsidiaries or joint ventures, and Investments after the Closing Date by the Captive Insurance
Companies in the ordinary course of its business; (v) Investments not otherwise permitted by the
foregoing clauses of this Section 9.12 in Subsidiaries (other than the Receivables Subsidiary) of
the Company and in Persons which become Subsidiaries of the Company as the result of such
Investments; (vi) Investments not otherwise permitted by the foregoing clauses of this Section 9.12
in joint ventures in an aggregate amount not to exceed $75,000,000; (vii) Investments comprised of
capital contributions, loans or deferred purchase price (whether in the form of cash, a note or
other assets) to any Receivables Subsidiary or of residual interests in any trust formed to
facilitate any related receivables securitization; and (viii) Investments not otherwise permitted
by the foregoing clauses of this Section 9.12 in an aggregate amount not to exceed $20,000,000.



     9.13 Transactions with Affiliates. Except as expressly permitted by this Agreement
the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly: (i)
make any Investment in an Affiliate of the Company (other than a Subsidiary of the Company); (ii)
transfer, sell, lease, assign or otherwise dispose of any assets to an Affiliate of the Company
(other than a Subsidiary of the Company); (iii) merge into or consolidate with or purchase or
acquire assets from an Affiliate of the Company (other than a Subsidiary of the Company); or (iv)
enter into any other transaction directly or indirectly with or for the benefit of an Affiliate of
the Company (other than a Subsidiary of the Company) (including, without limitation, Guaranties and
assumptions of obligations of an Affiliate of the Company (other than a Subsidiary of the
Company)); provided that (a) any Affiliate of the Company who is an individual may serve as a
director, officer or employee of the Company and receive reasonable compensation or indemnification
in connection with his or her services in such capacity; and (b) any transaction entered into by
the Company or a Subsidiary of the Company with an Affiliate of the Company which is not a
Subsidiary of the Company providing for the leasing of property, the rendering or receipt of
services or the purchase or sale of inventory and other assets in the ordinary course of business
must be for a monetary or business consideration which would be substantially as advantageous to
the Company or such Subsidiary as the monetary or business consideration which would obtain in a
comparable arm’s length transaction with a Person not an Affiliate of the Company.



     9.14 Lines of Business. The Company and its Subsidiaries, taken as a whole, shall not
engage to any substantial extent in any line or lines of business activity other than present or
related product lines.



     9.15 Environmental Matters. The Company will promptly give to the Lenders notice in
writing of any complaint, order, citation, notice or other written communication from any Person
with respect to, or if the Company becomes aware after due inquiry of, (i) the existence or alleged
existence of a violation of any applicable Environmental Law or Environmental



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Liability at, upon, under or within any property now or previously owned, leased, operated or
used by the Company or any of its Subsidiaries or any part thereof, or due to the operations or
activities of the Company, any Subsidiary on or in connection with such property or any part
thereof (including receipt by the Company or any Subsidiary of any notice of the happening of any
event involving the Release of a reportable quantity under any applicable Environmental Law or
cleanup of any Hazardous Substance), (ii) any Release on such property or any part thereof in a
quantity that is reportable under any applicable Environmental Law, (iii) the commencement of any
cleanup pursuant to or in accordance with any applicable Environmental Law of any Hazardous
Substances on or about such property or any part thereof and (iv) any pending or threatened
proceeding for the termination, suspension or non-renewal of any permit required under any
applicable Environmental Law, in each case which individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.




     9.16 Lease Payments. Neither the Company nor any of its Subsidiaries has incurred or
assumed or will incur or assume (whether pursuant to a Guaranty or otherwise) any liability for
rental payments under a lease with a lease term (as defined in Financial Accounting Standards No.
13 of the Financial Accounting Standards Board, as in effect on the date hereof) if (i) such lease
is of an asset previously owned by the Company or any of its Subsidiaries and (ii) after giving
effect thereto, the aggregate amount of minimum lease payments that the Company and its
Subsidiaries have so incurred or assumed will exceed, on a consolidated basis, $50,000,000 for any
calendar year under all such leases.



     9.17 Anti-Terrorism Laws. Neither the Company nor any of its Subsidiaries shall be in
violation of any law or regulation or appear on any list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the
USA Patriot Act) that prohibits or limits the conduct of business with or the receiving of funds,
goods or services to or for the benefit of certain Persons specified therein or that prohibits or
limits any Lender or LC Issuer from making any advance or extension of credit to any Borrower.



     SECTION 10. DEFAULTS.



     10.01 Events of Default. If one or more of the following events (herein called
“Events of Default”) shall occur and be continuing:



     (a) default in the payment of (i) any principal of any Loan or any reimbursement obligation in
respect of any Unpaid Drawing when due or (ii) any interest on any Loan or other amount payable
hereunder within five Business Days after the due date thereof; or



     (b) the Company or any of its Subsidiaries shall default in the payment when due of any
principal of or interest on Indebtedness having an aggregate outstanding principal amount of at
least $25,000,000 (other than the Loans); or any event or condition shall occur which results in
the acceleration of the maturity of any such Indebtedness or enables (or, with the giving of notice
or lapse of time or both, would enable) the holder of any such Indebtedness or any Person acting on
such holder’s behalf to accelerate the maturity thereof; or



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     (c) any representation or warranty made or deemed made by the Company or any Subsidiary
herein, or in any certificate furnished to any Lender, any LC Issuer or the Administrative Agent
pursuant to the provisions hereof, shall prove to have been false or misleading in any material
respect as of the time made or furnished; or



     (d) (i) any Borrower shall default in the performance of any of its obligations under Section
2.07, 9.01(a), (b) or (f), 9.08, 9.09, 9.10, 9.11, 9.12, 9.13, 9.16 or 9.17 hereof; or (ii) the
Company or any Subsidiary shall default in the performance of any of its other obligations
hereunder or any other Loan Document, and such default described in this subclause (ii) shall
continue unremedied for a period of 30 days after notice thereof to the Company by the
Administrative Agent or any Lender (through the Administrative Agent); or



     (e) the Company, any other Borrower or any of the Company’s Significant Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its debts as such debts become
due; or



     (f) the Company, any other Borrower or any of the Company’s Significant Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code, or (vi) take any corporate,
limited liability company or partnership action for the purpose of effecting any of the foregoing;
or



     (g) a proceeding or case shall be commenced, without the application or consent of the
Company, any other Borrower or any of the Company’s Significant Subsidiaries in any court of
competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such Person or of all or any substantial part of its assets,
or (iii) similar relief in respect of such Person under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of 60 days; or an
order for relief against such Person shall be entered in an involuntary case under the Bankruptcy
Code; or



     (h) a final judgment or judgments for the payment of money shall be rendered by a court or
courts against the Company or any of its Subsidiaries in excess of $40,000,000 in the aggregate
(excluding any amount of such judgment as to which an Acceptable Insurer has acknowledged
liability), and the same shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within 10 days from the date of
entry thereof, or the Company or such Subsidiary shall not, within said period of 10 days, or such
longer period during which execution of the same shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal; or



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     (i) the Company or any member of the Controlled Group shall fail to pay when due an amount or
amounts aggregating in excess of $20,000,000 for which it shall have become liable under Title IV
of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in
excess of $20,000,000 shall be filed under Title IV of ERISA by the Company or any member of the
Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer, any Plan or Plans having aggregate Unfunded Liabilities in excess of $20,000,000; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Plan or Plans having aggregate Unfunded Liabilities in excess of $20,000,000 must be
terminated; or there shall occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause the Company or one or more members of the Controlled Group to incur a current payment
obligation in excess of $20,000,000; or



     (j) (i) as a result of one or more transactions after the date of this Agreement, any “person”
or “group” of persons shall have “beneficial ownership” (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations
thereunder) of 30% or more of the outstanding common stock of the Company; or (ii) without limiting
the generality of the foregoing, during any period of 12 consecutive months, commencing after the
date of this Agreement, individuals who at the beginning of such 12-month period were directors of
the Company shall cease for any reason to constitute a majority of the board of directors of the
Company;


THEREUPON: the Administrative Agent may (and, if directed by the Majority Lenders, shall) by notice
to the Company (a) declare the Commitments terminated (whereupon the Commitments shall be
terminated), (b) terminate any Letter of Credit that may be terminated in accordance with its
terms; (c) declare the principal amount then outstanding of and the accrued interest on the Loans,
the Unpaid Drawings, fees and all other Obligations payable hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be and become immediately due and payable,
without other notice, presentment, demand, protest or other formalities of any kind (all of which
are hereby expressly waived by the Company); (d) terminate any Letter of Credit that may be
terminated in accordance with its terms and/or require the Company or the applicable LC Obligor to
deposit cash in a deposit account designated by the Administrative Agent in an amount equal to 105%
of the Revolving LC Outstandings or the Canadian LC Outstandings, as the case may be, of such LC
Obligor to secure such LC Obligor’s reimbursement obligations with respect to such Revolving LC
Outstandings or Canadian LC Outstandings; and/or (e) exercise any other right or remedy available
under any of the Loan Documents or applicable law; provided that in the case of the occurrence of
an Event of Default with respect to the Company referred to in clause (f) or (g) of this Section
10.01, the Commitments shall be automatically terminated, the principal amount then outstanding of
and the accrued interest on the Loans, the Unpaid Drawings, and fees and all other amounts payable
hereunder and under the Notes shall be and become automatically and immediately due and payable,
without notice (including, without limitation, notice of intent to accelerate), presentment,
demand, protest or other formalities of any kind, all of which are hereby expressly waived by the
Company, and the Company or the applicable LC Obligor shall immediately




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deposit cash in a deposit account designated by the Administrative Agent in an amount equal to 105%
of the Revolving LC Outstandings or the Canadian LC Outstandings, as the case may be, of such LC
Obligor to secure such LC Obligor’s reimbursement obligations with respect to such Revolving LC
Outstandings or Canadian LC Outstandings. Each Lender hereby agrees that, unless so requested by
the Administrative Agent with the consent of the Majority Lenders, it shall not take or cause to be
taken any action to declare the Commitments terminated or to declare payable or collect the amounts
referred to above that is independent from any action taken or to be taken by the Administrative
Agent, unless such action is taken in connection with an Event of Default described in clause (a),
(e), (f) or (g) of this Section 10.01.




     10.02 Application of Certain Payments and Proceeds. All payments and other amounts
received by the Administrative Agent, any LC Issuer or any Lender (i) at any time on or after the
Sharing Date or (ii) at any time from the exercise of remedies hereunder or under the other Loan
Documents, shall in each case unless otherwise required by the terms of the other Loan Documents or
by applicable law be applied as follows:



     (a) Obligations Generally. Except with respect to any amounts that are required to
first be applied pursuant to subparts (b) or (c) below, all amounts received from or with respect
to the Company shall be applied:




     (i) first, to the payment of that portion of the Obligations constituting fees,
indemnities and expenses and other amounts payable to the Administrative Agent or the
Arrangers in their capacity as such;




     (ii) second, to the payment of that portion of the Obligations constituting fees,
indemnities and expenses payable to each Lender or each applicable LC Issuer, ratably among
them in proportion to the aggregate of all such amounts;




     (iii) third, to the payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and Unpaid Drawings with respect to Letters of Credit, ratably
among the Lenders and each applicable LC Issuer in proportion to the aggregate of all such
amounts;




     (iv) fourth, pro rata to the payment of that portion of the Obligations constituting
unpaid principal of the Loans and Unpaid Drawings, ratably among the Lenders and each
applicable LC Issuer in proportion to the aggregate of all such amounts;




     (v) fifth, to the Administrative Agent for the benefit of each applicable LC Issuer to
cash collateralize the Stated Amount of outstanding Letters of Credit;




     (vi) sixth, to the payment of all other Obligations owing under or in respect of the
Loan Documents that are then due and payable to the Administrative Agent, the Arrangers,
each LC Issuer and the Lenders, ratably based upon the respective aggregate amounts of all
such Obligations owing to them on such date; and




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



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     (b ) Foreign Revolving Borrower Obligations. All amounts received from or with respect
to any Foreign Revolving Borrower shall be applied:




     (i) first, to the payment of that portion of the Foreign Revolving Borrower Obligations
owing by such Foreign Revolving Borrower constituting fees, indemnities and expenses and
other amounts payable to the Administrative Agent in its capacity as such;




     (ii) second, to the payment of that portion of the Foreign Revolving Borrower
Obligations owing by such Foreign Revolving Borrower constituting fees, indemnities and
expenses payable to each Lender and each applicable LC Issuer, ratably among them in
proportion to the aggregate of all such amounts;




     (iii) third, to the payment of that portion of the Foreign Revolving Borrower
Obligations constituting accrued and unpaid interest on the Loans made to such Foreign
Revolving Borrower and Unpaid Drawings with respect to Revolving Letters of Credit issued
for the account of such Foreign Revolving Borrower, ratably among the Lenders and each
applicable LC Issuer in proportion to the aggregate of all such amounts;




     (iv) fourth, to the payment of that portion of the Foreign Revolving Borrower
Obligations constituting unpaid principal of the Loans made to such Foreign Revolving
Borrower and Unpaid Drawings with respect to Revolving Letters of Credit issued for the
account of such Foreign Revolving Borrower, ratably among the Lenders and each applicable LC
Issuer in proportion to the aggregate of all such amounts;




     (v) fifth, to the Administrative Agent for the benefit of each applicable LC Issuer to
cash collateralize the Stated Amount of Revolving Letters of Credit issued for the account
of such Foreign Revolving Borrower;




     (vi) sixth, to the payment of all other Foreign Revolving Borrower Obligations of such
Foreign Revolving Borrower owing under or in respect of the Loan Documents that are then due
and payable to the Administrative Agent, each LC Issuer and the Lenders, ratably based upon
the respective aggregate amounts of all such Foreign Revolving Borrower Obligations owing to
them by such Foreign Revolving Borrower on such date; and




     (vii) finally, any remaining surplus after all of the Foreign Revolving Borrower
Obligations of such Foreign Revolving Borrower have been paid in full, to such Foreign
Revolving Borrower or to whomsoever shall be lawfully entitled thereto.



     (c) Canadian Obligations. All amounts received from or with respect to any Canadian
Borrower shall be applied:




     (i) first, to the payment of that portion of the Canadian Obligations owing by the
Canadian Borrowers constituting fees, indemnities and expenses and other amounts payable to
the Administrative Agent in its capacity as such;



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     (ii) second, to the payment of that portion of the Canadian Obligations owing by the
Canadian Borrowers constituting fees, indemnities and expenses payable to each Canadian
Lender or each applicable LC Issuer, ratably among them in proportion to the aggregate of
all such amounts;




     (iii) third, to the payment of that portion of the Canadian Obligations constituting
accrued and unpaid interest on the Canadian Revolving Loans made to the Canadian Borrowers
and Unpaid Drawings with respect to Canadian Letters of Credit issued for the account of a
Canadian Borrower, ratably among the Canadian Lenders and the applicable LC Issuers in
proportion to the aggregate of all such amounts;




     (iv) fourth, to the payment of that portion of the Canadian Obligations constituting
unpaid principal of the Canadian Revolving Loans made to the Canadian Borrowers and Unpaid
Drawings with respect to Canadian Letters of Credit issued for the account of a Canadian
Borrower, ratably among the Canadian Lenders and each applicable LC Issuer in proportion to
the aggregate of all such amounts;




     (v) fifth, to the Administrative Agent for the benefit of each applicable LC Issuer to
cash collateralize the Stated Amount of outstanding Canadian Letters of Credit issued for
the account of a Canadian Borrower;




     (vi) sixth, to the payment of all other Canadian Obligations owing under or in respect
of the Loan Documents that are then due and payable to the Administrative Agent and the
Canadian Lenders, ratably based upon the respective aggregate amounts of all such Canadian
Obligations owing to them by the Canadian Borrowers on such date; and




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



     SECTION 11. THE ADMINISTRATIVE AGENT.



     11.01 Appointment, Powers and Immunities. Each Lender hereby irrevocably appoints and
authorizes the Administrative Agent to act as its agent hereunder and under the Notes with such
powers as are specifically delegated to the Administrative Agent by the terms hereof and thereof,
together with such other powers as are reasonably incidental thereto. The Administrative Agent
(which term as used in this Section 11 shall include reference to its affiliates and its and its
affiliates’ officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement and the Notes, and shall not by
reason of this Agreement or any Note be a trustee for any Lender; (b) shall not be responsible to
the Lenders for any recitals, statements, representations or warranties contained in this Agreement
or the Notes, or in any certificate or other document referred to or provided for in, or received
by any of them under, this Agreement or any the Notes, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Note or any other document
referred to or provided for herein or therein or for any failure by the Company or any of its
Subsidiaries or any other Person to perform any of its obligations hereunder or thereunder; (c)
shall not be required to initiate or conduct any litigation or collection proceedings hereunder or



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under any Note except to the extent requested by the Majority Lenders, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under any Note or any
other document or instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful misconduct. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable
care.




     11.02 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon any certification, notice or other communication (including any thereof by telephone,
telex, telegram or cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent. As to any matters
not expressly provided for by this Agreement or the Notes, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and thereunder in
accordance with instructions signed by the Majority Lenders and such instructions of the Majority
Lenders and any action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.



     11.03 Defaults. The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment of principal of or interest on Loans or
facility or utilization fees) unless the Administrative Agent has received notice from a Lender or
the Company specifying such Default and stating that such notice is a “Notice of Default”.
In the event that the Administrative Agent receives such a notice of the occurrence of a Default,
the Administrative Agent shall give prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). The Administrative Agent shall (subject to Section
11.07 hereof) take such action with respect to such Default as shall be directed by the Majority
Lenders, provided that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem advisable in the
best interests of the Lenders.



     11.04 Rights as a Lender. With respect to its Commitment and the Loans made by it,
National City in its capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as the Administrative
Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent may (without having
to account therefor to any Lender) accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Company (and any of its Affiliates) as if it were
not acting as the Administrative Agent and the Administrative Agent may accept fees and other
consideration from the Company (in addition to the agency fees and arrangement fees heretofore
agreed to between the Company, the Administrative Agent) for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.



     11.05 Indemnification. The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed under Section 13.03 or 13.04 hereof, but without limiting the



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obligations of the Company under said Sections 13.03 and 13.04), ratably in accordance with
their respective Commitments, for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any other Loan Document or any other documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or thereby (including,
without limitation, the costs and expenses which the Company is obligated to pay under Sections
13.03 and 13.04 hereof but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or thereof or of any such other documents, provided that
no Lender shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.




     11.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its own credit analysis
of the Company and decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or its Note or Notes. The
Administrative Agent shall not be required to keep itself informed as to the performance or
observance by the Company or any other Person of this Agreement or any of the other Loan Documents
or any other document referred to or provided for herein or therein or to inspect the properties or
books of the Company or any other Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Administrative Agent hereunder
or under the Notes, the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the affairs, financial condition or
business of the Company or any other Person (or any of their affiliates) which may come into the
possession of the Administrative Agent.



     11.07 Failure to Act. Except for action expressly required of the Administrative
Agent hereunder and under any Note, the Administrative Agent shall in all cases be fully justified
in failing or refusing to act hereunder and thereunder unless it shall receive further assurances
to its satisfaction by the Lenders of their indemnification obligations under Section 11.05 hereof
against any and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.



     11.08 Resignation or Removal of Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Company and the Administrative
Agent may be removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a successor
Administrative Agent reasonably acceptable to the Company. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the
Majority Lenders’ removal of the retiring Administrative Agent (the “Notice Date”), then
the retiring Administrative Agent may, on behalf of the Lenders,



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appoint a successor Administrative Agent reasonably acceptable to the Company. Any successor
Administrative Agent shall be (i) a Lender or (ii) if no Lender has accepted such appointment
within 40 days after the Notice Date, a bank with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent’s resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as the Administrative
Agent.




     11.09 Other Agents. Except as specifically set forth herein with respect to the
Arrangers, any Lender identified herein as a Co-Agent, Syndication Agent, Documentation Agent,
Managing Agent, Manager, Book Runner, Joint Book Runner or any other corresponding title, other
than “Administrative Agent,” shall have no right, power, obligation, liability, responsibility or
duty under this Agreement or any other Loan Document except those applicable to all Lenders as
such. Each Lender acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or not taking any action
hereunder.



     11.10 USA Patriot Act. Each Lender or assignee or participant of a Lender that is not
organized 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 (a) an affiliate of a depository institution or foreign
bank that maintains a physical presence in the United States or foreign country, and (b) subject to
supervision by a banking authority regulating such affiliated depository institution or foreign
bank) shall deliver to the Administrative Agent the certification, or, if applicable,
recertification, certifying that such Lender is not a “shell” and certifying to other matters as
required by Section 313 of the USA Patriot Act and the applicable regulations: (i) within 10 days
after the Closing Date, and (ii) at such other times as are required under the USA Patriot Act.



     SECTION 12. GUARANTY.



     12.01 Guaranty by the Company. The Company hereby irrevocably and unconditionally
guarantees, for the benefit of the Benefited Creditors, all of the following (collectively, the
“Company Guaranteed Obligations”): (a) the principal of and interest on the Notes issued
by, and the Loans made to, and the other Obligations of, the Foreign Borrowers under this
Agreement, and (b) all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit issued for the benefit of any LC Obligor (other than the Company) under this Agreement, in
all cases under subparts (a) or (b) above, whether now existing, or hereafter incurred or arising,
including any such interest or other amounts incurred or arising during the pendency of any
bankruptcy, insolvency, reorganization, receivership or similar proceeding, regardless of whether
allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the
Bankruptcy Code. Upon failure by any Borrower to pay punctually any of the Company Guaranteed
Obligations, the Company shall forthwith on demand by the



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Administrative Agent pay the amount not so paid at the place and in the currency and otherwise
in the manner specified in this Agreement or any other applicable agreement or instrument.




     12.02 Additional Undertaking. As a separate, additional and continuing obligation,
the Company unconditionally and irrevocably undertakes and agrees, for the benefit of the Benefited
Creditors that, should any amounts not be recoverable from the Company under Section 12.01 for any
reason whatsoever (including, without limitation, by reason of any provision of any Loan Document
or any other agreement or instrument executed in connection therewith being or becoming void,
unenforceable, or otherwise invalid under any applicable law) then, notwithstanding any notice or
knowledge thereof by any Lender, the Administrative Agent, any of their respective Affiliates, or
any other Person, at any time, the Company as sole, original and independent obligor, upon demand
by the Administrative Agent, will make payment to the Administrative Agent, for the account of the
Benefited Creditors, of all such obligations not so recoverable by way of full indemnity, in such
currency and otherwise in such manner as is provided in the Loan Documents or any other applicable
agreement or instrument.



     12.03 Guaranty Unconditional. The obligations of the Company under this Section shall
be unconditional and absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by the occurrence, one or more times, of any of the
following:



     (a) any extension, renewal, settlement, compromise, waiver or release in respect to any
Company Guaranteed Obligation under any agreement or instrument, by operation of law or otherwise;



     (b) any modification or amendment of or supplement to this Agreement, any Note, any other Loan
Document, or any agreement or instrument evidencing or relating to any Company Guaranteed
Obligation;



     (c) any release, non-perfection or invalidity of any direct or indirect security for any
Company Guaranteed Obligation under any agreement or instrument evidencing or relating to any
Company Guaranteed Obligation;



     (d) any change in the corporate or limited liability company existence, structure or ownership
of any Borrower or other Subsidiary or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any Borrower or other Subsidiary or its assets or any resulting release or
discharge of any obligation of any Borrower or other Subsidiary contained in any agreement or
instrument evidencing or relating to any Company Guaranteed Obligation;



     (e) the existence of any claim, set-off or other rights which the Company may have at any time
against any other Borrower, the Administrative Agent, any Lender, any Affiliate of any Lender or
any other person, whether in connection herewith or any unrelated transactions;



     (f) any invalidity or unenforceability relating to or against any other Borrower for any
reason of any agreement or instrument evidencing or relating to any Company Guaranteed Obligation,
or any provision of applicable law or regulation purporting to prohibit the payment by any Borrower
of any of the Company Guaranteed Obligations; or



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     (g) any other act or omission of any kind by any other Borrower, the Administrative Agent, any
Lender or any other Person or any other circumstance whatsoever which might, but for the provisions
of this Section, constitute a legal or equitable discharge of the Company’s obligations under this
Section other than the irrevocable payment in full of all Company Guaranteed Obligations.



     12.04 Company Obligations to Remain in Effect; Restoration. The Company’s obligations
under this Section shall remain in full force and effect until the Commitments shall have
terminated, and the principal of and interest on the Notes and other Company Guaranteed
Obligations, and all other amounts payable by the Company, any other Borrower or other Subsidiary,
under the Loan Documents or any other agreement or instrument evidencing or relating to any of the
Company Guaranteed Obligations, shall have been paid in full. If at any time any payment of any of
the Company Guaranteed Obligations is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of such Borrower, the Company’s obligations under this
Article with respect to such payment shall be reinstated at such time as though such payment had
been due but not made at such time.



     12.05 Waiver of Acceptance, etc. The Company irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as any requirement
that at any time any action be taken by any person against any other Borrower or any other Person,
or against any collateral or guaranty of any other Person.



     12.06 Subrogation. Until the indefeasible payment in full of all of the Obligations
and the termination of the Commitments hereunder, the Company shall have no rights, by operation of
law or otherwise, upon making any payment under this Section to be subrogated to the rights of the
payee against any other Borrower with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by any such Borrower in respect thereof.



     12.07 Effect of Stay. In the event that acceleration of the time for payment of any
amount payable by any Borrower under any Company Guaranteed Obligation is stayed upon insolvency,
bankruptcy or reorganization of such Borrower, all such amounts otherwise subject to acceleration
under the terms of any applicable agreement or instrument evidencing or relating to any Company
Guaranteed Obligation shall nonetheless be payable by the Company under this Section forthwith on
demand by the Administrative Agent.



     SECTION 13. MISCELLANEOUS.



     13.01 Waiver. No failure on the part of the Administrative Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement or the Notes shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The remedies provided in
this Agreement and the Notes are cumulative and not exclusive of any remedies provided by law.



     13.02 Notices. All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this Agreement) shall be
given or made by telex, telegraph, telecopy, cable or other writing and telexed, telecopied,




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telegraphed, cabled, mailed or delivered to the intended recipient at the “Address for
Notices” specified below its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to the Company and the Administrative
Agent given in accordance with this Section 13.02. Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly given when transmitted by telex or
telecopier, delivered to the telegraph or cable office or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as aforesaid.




     13.03 Expenses, Etc. The Company agrees to pay (or reimburse the Administrative Agent,
each LC Issuer, the Lenders or their Affiliates, as the case may be) all of the following: (i)
whether or not the transactions contemplated hereby are consummated, for all reasonable
out-of-pocket costs of the Administrative Agent and the Arrangers in connection with the
negotiation, preparation, syndication, administration and execution and delivery of the Loan
Documents and the documents and instruments referred to therein and the syndication of the
Commitments; (ii) all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with any amendment, waiver or consent relating to any of the Loan Documents that are
requested by any Borrower; (iii) all reasonable out-of-pocket costs and expenses of the
Administrative Agent, the Arrangers, the Lenders, each LC Issuer and their Affiliates in connection
with the enforcement of any of the Loan Documents or the other documents and instruments referred
to therein, including, without limitation, the reasonable fees and disbursements of any individual
counsel to the Administrative Agent, any LC Issuer and any Lender (including, without limitation,
allocated costs of internal counsel); (iv) any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save the Administrative Agent, each LC Issuer and
each of the Lenders harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to any such indemnified Person)
to pay such taxes.



     13.04 Indemnification. The Company shall indemnify the Administrative Agent, each LC
Issuer, each Lender, and each affiliate thereof and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, penalties, damages or expenses to which any of them may become subject,
insofar as such losses, liabilities, claims, penalties, damages or expenses arise out of or result
from (i) any actual or proposed use by the Company of the proceeds of any extension of credit by
any Lender or LC Issuer hereunder or breach by the Company of this Agreement or any other Loan
Document, (ii) any Environmental Liabilities or (iii) any investigation, litigation or other
proceeding (including any threatened investigation or proceeding) relating to the foregoing,
whether or not the indemnified Person is a party thereto, and the Company shall reimburse the
Administrative Agent, each LC Issuer, each Lender, and each affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any expenses (including legal fees and
fees of engineers, environmental consultants and similar technical personnel) incurred in
connection with any such investigation or proceeding; but excluding any such losses, liabilities,
claims, penalties, damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified. Notwithstanding the foregoing, a Foreign Borrower shall
only be required to indemnify any Indemnitee pursuant to this Section to the extent that any such
losses, liabilities, claims, penalties, damages or expenses have been caused by such Foreign
Borrower or are otherwise directly related or attributable to such Foreign Borrower.



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     13.05 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
the Notes, nor any consent to any departure by the Company therefrom, shall in any event be
effective unless the same shall be agreed or consented to by the Majority Lenders, the Company and,
if such amendment or waiver relates to any other Borrower, such other Borrower, and each such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment, waiver or consent shall (i) increase any Commitment of
any Lender or subject any Lender to any additional obligations, without the written consent of such
Lender; (ii) reduce the principal of, or interest on, any Loan, Unpaid Drawing or any fees
hereunder, without the written consent of each Lender affected thereby; (iii) postpone (A) any date
fixed for any payment of principal of, or interest on, any Loan, or any fee hereunder pursuant to
Sections 2.03, 4.01 or 4.02 hereof, or (B) the expiration date of any Letter of Credit beyond the
latest expiration date for a Letter of Credit provided for herein, in each case without the written
consent of each Lender affected thereby; (iv) change the percentage of any of the Commitments or of
the aggregate unpaid principal amount of any of the Loans, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action under this Agreement, without the
written consent of each Lender; (v) change any provision contained in Sections 2.07, 6, 10.02,
13.03 or 13.04 hereof or this Section 13.05 or Section 13.08 hereof, without the consent of each
Lender; (vi) release the Company from its guaranty obligations under Section 12 hereof; or (vii)
modify any Lender’s right to receive pro rata distribution of payments and proceeds under Section
5.02 hereof. Notwithstanding anything in this Section 13.05 to the contrary, no amendment, waiver
or consent shall be made with respect to Section 11 without the consent of the Administrative
Agent.



     13.06 Successors and Assigns.



     (a) Generally. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and assigns; provided,
however, that no Borrower may assign or transfer any of its rights or obligations hereunder without
the prior written consent of all the Lenders, and, provided, further, that any assignment or
participation by a Lender of any of its rights and obligations hereunder shall be effected in
accordance with this Section.



     (b) Participations. Each Lender may at any time grant participations in any of its
rights hereunder or under any of the Notes to an Eligible Assignee, provided that in the case of
any such participation,




     (i) the participant shall not have any rights under this Agreement or any of the other
Loan Documents, including rights of consent, approval or waiver (the participant’s rights
against such Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto),




     (ii) such Lender’s obligations under this Agreement (including, without limitation, its
Commitments hereunder) shall remain unchanged,




     (iii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations,



91









 






     (iv) such Lender shall remain the holder of any Note for all purposes of this
Agreement, and




     (v) the Borrowers, the Administrative Agent, and the other Lenders shall continue to
deal solely and directly with the selling Lender in connection with such Lender’s rights and
obligations under this Agreement, and all amounts payable by the Borrowers hereunder shall
be determined as if such Lender had not sold such participation, except that the participant
shall be entitled to the benefits of Sections 5.08 and 6 to the extent that such Lender
would be entitled to such benefits if the participation had not been entered into or sold,


and, provided further, that, notwithstanding anything to the contrary contained herein, no Lender
shall transfer, grant or sell any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Loan Document or consent to the
departure therefrom except to the extent such amendment or waiver or consent would (w) extend the
final scheduled maturity of the Loans or Letter of Credit in which such participant is
participating, or reduce the rate or extend the time of payment of interest or fees thereon (except
in connection with a waiver of the applicability of any post-default increase in interest rates),
or reduce the principal amount thereof or extend the time of payment thereof, or increase such
participant’s participating interest in any Commitment over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default shall not constitute a change in
the terms of any such Commitment), (x) release any guarantor from its guaranty of any of the
Obligations, except strictly in accordance with the terms of the Loan Documents, or (y) consent to
the assignment or transfer by any Borrower of any of its rights and obligations under this
Agreement.




     (c) Assignments.




     (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans,
Revolving LC Participations, Canadian LC Participations, Swing Loan Participations and/or
Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each
of which shall become a party to this Agreement as a Lender by execution of an Assignment
Agreement; provided, however, that




          (A) except in the case (x) of an assignment of the entire remaining amount of the
assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an
Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate
amount of the Commitment so assigned (which for this purpose includes the Loans outstanding
thereunder) shall not be less than $5,000,000;




          (B) no Lender that is a Canadian Lender (whether directly or by its Canadian Lending
Installation) may assign any portion of its Canadian Commitment (including the outstanding
Canadian Revolving Loans made by it thereunder) to an Eligible Assignee who is (or whose
Canadian Lending Installation is) not a Qualified Canadian Lender;



92









 






          (C) in the case of any assignment to an Eligible Assignee at the time of any such
assignment the Lender Register shall be deemed modified to reflect the Commitments of such
new Lender and of the existing Lenders;




          (D) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes
will be issued, at the Borrowers’ expense, to such new Lender and to the assigning Lender,
to the extent needed to reflect the revised Commitments; and




          (E) unless waived by the Administrative Agent, the Administrative Agent shall receive
at the time of each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500, except, in the case of (i) one or more assignments
to an Affiliate of the assigning Lender or an Approved Fund of the assigning Lender, in
which case the assignment fee for all such assignments shall be $1,000, and (ii) an
assignment involving the Administrative Agent (in its capacity as a Lender), in which case
there shall be no fee required.




     (ii) To the extent of any assignment pursuant to this subpart (c), the assigning Lender
shall be relieved of its obligations hereunder with respect to its assigned Commitments.




     (iii) At the time of each assignment pursuant to this subpart (c) to a Person that is
not already a Lender hereunder and that is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes the respective
assignee Lender shall provide to the Company and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable an Exemption Certificate) described in
Section 5.08(f). To the extent that an assignment of all or any portion of a Lender’s
Commitment and related outstanding Obligations pursuant to this subpart (c) would, at the
time of such assignment, result in increased costs under Section 6 from those being charged
by the respective assigning Lender prior to such assignment, then the Company shall not be
obligated to pay such increased costs (although the Borrowers shall be obligated to pay any
other increased costs of the type described above resulting from changes after the date of
the respective assignment).




     (iv) With respect to any Lender, the transfer of any Commitment of such Lender and the
rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall
not be effective until such transfer is recorded on the Lender Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and prior to
such recordation all amounts owing to the transferor with respect to such Commitment and
Loans shall remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative Agent on
the Lender Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment Agreement pursuant to this subpart (c).




     (v) Nothing in this Section shall prevent or prohibit (A) any Lender that is a bank,
trust company or other financial institution from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal



93









 






Reserve Bank, or (B) any Lender that is a trust, limited liability company, partnership
or other investment company from pledging its Notes or Loans to a trustee or agent for the
benefit of holders of certificates or debt securities issued by it. No such pledge, or any
assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the
transferor Lender from its obligations hereunder.



     (d) No SEC Registration or Blue Sky Compliance. Notwithstanding any other provisions
of this Section, no transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer, assignment or grant
would require any Borrower to file a registration statement with the SEC or to qualify the Loans
under the “Blue Sky” laws of any state.



     (e) Representations of Lenders. Each Lender initially party to this Agreement hereby
represents, and each Person that becomes a Lender pursuant to an assignment permitted by this
Section will, upon its becoming party to this Agreement, represent that it is a commercial lender,
other financial institution or other “accredited” investor (as defined in SEC Regulation D) that
makes or acquires loans in the ordinary course of its business and that it will make or acquire
Loans for its own account in the ordinary course of such business; provided, however, that subject
to the preceding Section 13.06(b) and (c), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Lender shall at all times be within its
exclusive control.



     13.07 Confidentiality. Each Lender agrees to keep confidential any information
delivered or made available by the Company to it prior to the end of the term of this Agreement
which is clearly indicated to be confidential information; provided that nothing herein shall
prevent any Lender from disclosing such information (i) to any other Lender, (ii) to its officers,
directors, employees, affiliates, agents, attorneys and accountants who have a need to know such
information in accordance with customary banking practices and who receive such information having
been made aware of the restrictions set forth in this Section, (iii) upon the order (which, for
avoidance of doubt, includes any subpoena) of any court or administrative agency, (iv) upon the
request or demand of any regulatory agency or authority having jurisdiction over such Lender, (v)
which has been publicly disclosed, (vi) to the extent reasonably required in connection with any
litigation to which the Administrative Agent, any Lender, the Company or their respective
affiliates may be a party, (vii) to the extent reasonably required in connection with the exercise
of any remedy hereunder, (viii) to such Lender’s legal counsel and independent auditors, and (ix)
to any actual or proposed participant or assignee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 13.07.



     13.08 Limitations on Liability of the LC Issuers. Each Borrower assumes all risks of
the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its
use of such Letters of Credit. No LC Issuer or any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness
of documents, or of any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (c) payment by an LC Issuer against
presentation of documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such Letter of
Credit; or



94









 




(d) any other circumstances whatsoever in making or failing to make payment under
any Letter of Credit, except that any account party with respect to a Letter of Credit shall have a
claim against an LC Issuer, and an LC Issuer shall be liable to such account party, to the extent
of any direct, but not consequential, damages suffered by such account party that such account
party proves were caused by (i) such LC Issuer’s willful misconduct or gross negligence in
determining whether documents presented under a Letter of Credit comply with the terms of such
Letter of Credit or (ii) such LC Issuer’s willful failure to make lawful payment under any Letter
of Credit after the presentation to it of documentation strictly complying with the terms and
conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, an LC
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation.




     13.09 Canadian Interest Limitation. Notwithstanding anything herein to the contrary,
in no event shall the aggregate “interest” (as defined in section 347 of the Criminal Code, Revised
Statutes of Canada, 1985, C. 46 as the same may be amended, replaced or re-enacted from time to
time) payable under this Agreement with respect to the Canadian Obligations exceed the effective
annual rate of interest on the “credit advanced” (as defined in that section) under this Agreement
lawfully permitted under that section and, if any payment, collection or demand pursuant to this
Agreement in respect of “interest” (as defined in that section) is determined to be contrary to the
provisions of that section, such payment, collection or demand shall be deemed to have been made by
mutual mistake of the applicable Canadian Borrower and the Canadian Lenders and the amount of such
payment or collection shall be refunded to such Canadian Borrower; for purposes of this Agreement
the effective annual rate of interest shall be determined in accordance with generally accepted
actuarial practices and principles over the term of the applicable credit advanced on the basis of
annual compounding of the lawfully permitted rate of interest and, in the event of dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative
Agent will be conclusive for the purposes of such determination. The amount of the payment that is
to be refunded will be determined by the Administrative Agent.



     13.10 Judgment Currency. If the Administrative Agent, on behalf of the Lenders,
obtains a judgment or judgments against any Borrower in a Designated Foreign Currency, the
obligations of such Borrower in respect of any sum adjudged to be due to the Administrative Agent
or the Lenders hereunder or under the Notes (the “Judgment Amount”) shall be discharged
only to the extent that, on the Business Day following receipt by the Administrative Agent of the
Judgment Amount in the Designated Foreign Currency, the Administrative Agent, in accordance with
normal banking procedures, may purchase Dollars with the Judgment Amount in such Designated Foreign
Currency. If the amount of Dollars so purchased is less than the amount of Dollars that could have
been purchased with the Judgment Amount on the date or dates the Judgment Amount (excluding the
portion of the Judgment Amount which has accrued as a result of the failure of such Borrower to pay
the sum originally due hereunder or under the Notes when it was originally due hereunder or under
the Notes) was originally due and owing (the “Original Due Date”) to the Administrative
Agent or the Lenders hereunder or under the Notes (the “Loss”), such Borrower agrees as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender, as the case may be, against the Loss, and if the amount of Dollars so purchased
exceeds the amount of Dollars that could have been



95









 




purchased with the Judgment Amount on the Original Due Date, the Administrative Agent or such
Lender agrees to remit such excess to such Borrower.




     13.11 Survival. The obligations of the Company under Sections 5.08, 6.01, 6.05, 13.03
and 13.04 hereof and the obligations of the Lenders under Sections 11.05 and 13.07 shall survive
the repayment of the Loans and the termination of the Commitments.



     13.12 Captions. The table of contents and the captions and section headings appearing
herein are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.



     13.13 Counterparts; Integration. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart. This Agreement
constitutes the entire agreement and understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral and written, relating to the subject matter hereof
(except to the extent specific reference is made to any such agreement in Section 2.03 hereof).



     13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.



     (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
EACH BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO AND OF ANY OHIO STATE COURT SITTING IN CLEVELAND, OHIO FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.



     (b) EACH BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.



     (c) EACH BORROWER, THE ADMINISTRATIVE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



[Remainder of page intentionally left blank]




96









 





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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	RPM INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Robert L. Matejka	 	 
	 

	 	 	 	 	 	Name:
	 	 

Robert L. Matejka
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Address for Notices:	 	 
	 	 	 	 	 	 	2628 Pearl Road	 	 
	 	 	 	 	 	 	P.O. Box 777	 	 
	 	 	 	 	 	 	Medina, Ohio 44258	 	 
	 	 	 	 	 	 	Attention: Chief Financial Officer	 	 
	 	 	 	 	 	 	Telephone Number: 330-273-8833	 	 
	 	 	 	 	 	 	Facsimile Number: 330-220-6006	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	RPM LUX HOLDCO S.Á. R.L.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Seil
	 	 	 	By:
	 	/s/ P. Kelly Tompkins	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:

	 	John Seil
	 	 	 	Name:
	 	P. Kelly Tompkins	 	 
	Title:

	 	 Director
	 	 	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Address for Notices:	 	 
	 	 	 	 	 	 	2628 Pearl Road	 	 
	 	 	 	 	 	 	P.O. Box 777	 	 
	 	 	 	 	 	 	Medina, Ohio 44258	 	 
	 	 	 	 	 	 	Attention: Director	 	 
	 	 	 	 	 	 	Telephone Number: 330-273-8838	 	 
	 	 	 	 	 	 	Facsimile Number: 330-225-6574	 	 






97









 





	 	 	 	 	 	 	 
	 	 	RPOW UK LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ P. Kelly Tompkins	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 P. Kelly Tompkins	 	 
	 

	 	Title:
	 	Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	2628 Pearl Road	 	 
	 	 	P.O. Box 777	 	 
	 	 	Medina, Ohio 44258	 	 
	 	 	Attention: Secretary	 	 
	 	 	Telephone Number: 330-273-8838	 	 
	 	 	Facsimile Number: 330-225-6574	 	 
	 
	 	 	 	 	 	 
	 	 	RPM EUROPE HOLDCO B.V.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ P. Kelly Tompkins
 

 P. Kelly Tompkins
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	2628 Pearl Road	 	 
	 	 	P.O. Box 777	 	 
	 	 	Medina, Ohio 44258	 	 
	 	 	Attention: Director	 	 
	 	 	Telephone Number: 330-273-8838	 	 
	 	 	Facsimile Number: 330-225-6574	 	 
	 
	 	 	 	 	 	 
	 	 	RPM CANADA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith R. Smiley	 	 
	 

	 	Name:
	 	 

 Keith R. Smiley
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	2628 Pearl Road	 	 
	 	 	P.O. Box 777	 	 
	 	 	Medina, Ohio 44258	 	 
	 	 	Attention: Treasurer	 	 
	 	 	Telephone Number: 330-273-8837	 	 
	 	 	Facsimile Number: 330-220-6006	 	 
	 
	 	 	 	 	 	 






98









 





	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK,	 	 
	 	 	as the Administrative Agent, an Arranger, the	 	 
	 	 	Swing Line Lender, the LC Issuer and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert S. Coleman	 	 
	 

	 	Name:
	 	 

Robert S. Coleman
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	National City Bank	 	 
	 	 	1900 E. Ninth Street — Loc. #2077	 	 
	 	 	Cleveland, OH 44114	 	 
	 	 	Attention: Revette Vickerstaff	 	 
	 	 	Facsimile Number: 216-488-7110	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, CANADA BRANCH,	 	 
	 	 	as a Canadian Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Caroline Stade
	 	/s/ Bill Hines
	 

	 	 	 	 
	 	 
	 

	 	Name:
	 	Caroline Stade
	 	Bill Hines
	 

	 	Title:
	 	Senior Vice President
	 	Senior Vice President &

Principal Officer
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	National City Bank, Canada Branch	 	 
	 	 	130 King Street West, Suite 2140	 	 
	 	 	Toronto, Ontario	 	 
	 	 	Canada M5X 1E4	 	 
	 	 	Attention: Donna Hallim and Ken Argue	 	 
	 	 	Facsimile Number: 416-361-0085	 	 
	 
	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	as the Syndication Agent, an Arranger and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas J. Purcell	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas J. Purcell	 	 
	 

	 	Title:
	 	 Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	127 Public Square	 	 
	 	 	Cleveland, Ohio 44114	 	 
	 	 	Attention: Diane Cox	 	 
	 	 	Facsimile Number: 216-689-4981	 	 
	 
	 	 	 	 	 	 






99









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, N.A.,	 	 
	 	 	as Co-Documentation Agent and a Lender	 	 
	 

	 	By:
	 	/s/ Barbara Van Meerten
 

	 	 
	 

	 	Name:
	 	Barbara Van Meerten	 	 
	 

	 	Title:
	 	 Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	201 S. College Street	 	 
	 	 	NC 1183	 	 
	 	 	Charlotte, NC 28244	 	 
	 	 	Attention: LaShasta Jackson	 	 
	 	 	Facsimile Number: 704-715-0091	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 
	 	 	as Co-Documentation Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irene Bertozzi Bartenstein	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Irene Bertozzi Bartenstein	 	 
	 

	 	Title:
	 	 Principal	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	Bank of America	 	 
	 	 	Mailcode: CA4-702-02-25	 	 
	 	 	Building B2001	 	 
	 	 	Clayton Road	 	 
	 	 	Concord, California 94520-2405	 	 
	 	 	Attention: Julia Del Rio	 	 
	 	 	Facsimile Number: 1-888-969-9284	 	 







100









 





	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
	 	 	LTD., Chicago Branch, as Co-Documentation
	 	 	Agent and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tsuguyuki Umene	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tsuguyuki Umene	 	 
	 

	 	Title:
	 	Deputy General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:
	 	 	227 West Monroe Street — Suite 2300
	 	 	Chicago, Illinois 60606
	 	 	Attention: John DiLegge
	 	 	Facsimile Number: (312) 696-4535
	 
	 	 	 	 	 	 
	 	 	BANK OF TOKYO-MITSUBISHI UFJ
	 	 	(CANDADA)
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Angelo Bisutti	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Angelo Bisutti	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:
	 	 	Royal Bank Plaza, South Tower, Suite 1700
	 	 	Toronto, Ontario, Canada, M5J 2J1
	 	 	Attention: Angelo Bisutti
	 	 	Facsimile Number: 416-865-9511






101









 





	 	 	 	 	 	 	 
	Name of Institution:	 	BANK OF AMERICA, N.A. (Canada Branch)
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Medina Sales de Andrade	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Medina Sales de Andrade	 	 
	 

	 	 	 	Title: Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	200 Front Street West,	 	 
	 

	 	 	 	Toronto, Ontario, M5V 3L2	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Medina Sales de Andrade	 	 
	 

	 	 	 	Facsimile: 416-349-4283	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	The Bank of New York
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth R. McDonnell	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Kenneth R. McDonnell	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	One Wall Street — 21st Floor	 	 
	 

	 	 	 	New York, NY, 10286	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Terry Blackburn	 	 
	 

	 	 	 	Facsimile: 212-635-1481	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	Fifth Third Bank
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Roy C. Lanctot	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Roy C. Lanctot	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	600 Superior Avenue East	 	 
	 

	 	 	 	Cleveland, OH 44114	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Roy C. Lanctot	 	 
	 

	 	 	 	Facsimile: 216.274.5621	 	 
	 
	 	 	 	 	 	 





102









 






	 	 	 	 	 	 	 
	Name of Institution:	 	KBC BANK, NV, New York Branch
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Surdam, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: ROBERT M. SURDAM, JR.	 	 
	 

	 	 	 	Title: VICE PRESIDENT	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Snauffer	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Robert Snauffer	 	 
	 

	 	 	 	Title: First Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	1177 Avenue of the Americas	 	 
	 

	 	 	 	New York, NY 10036	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Robert M. Surdam, Jr.	 	 
	 

	 	 	 	Facsimile: 212-541-0793	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	LASALLE BANK NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Patrick F. Dunphy	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Patrick F. Dunphy	 	 
	 

	 	 	 	Title: First Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	1300 E 9th St, Suite 1000	 	 
	 

	 	 	 	Cleveland, OH 44114	 	 
	 

	 	 	 	Attention: Patrick F. Dunphy	 	 
	 

	 	 	 	Facsimile: 216-802-2212	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	Dresdnar Bank AG in Düsseldorf
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Lubeley
	 	/s/
G. Weinand
	 

	 	 	 	 
	 	 
	 

	 	Name:
	 	W. Lubeley
	 	Name: G. Weinand
	 

	 	Title:
	 	Director President
	 	Title: President
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Dresdner Bank AG	 	 
	 

	 	 	 	Postfach 10 11 07	 	 
	 

	 	 	 	40002 Düsseldorf, Germany	 	 
	 

	 	 	 	Attention: W. Lubeley, G. Weinand	 	 
	 

	 	 	 	Facsimile: 0049-211-311-4438	 	 
	 
	 	 	 	 	 	 





103









 






	 	 	 	 	 	 	 
	Name of Institution:	 	Scotiabanc Inc.
	 	 	As a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William E. Zarrett	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: William E. Zarrett	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	600 Peachtree St. NE, Ste. 2700	 	 
	 

	 	 	 	Atlanta, GA 30308	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: William E. Zarrett	 	 
	 

	 	 	 	Facsimile: (404)888-8995	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	The Bank of Nova Scotia
	 	 	as a Canadian Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stephen Taborek	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Stephen Taborek	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	2 Robert Speck Parkway, 4th floor	 	 
	 

	 	 	 	Mississauga, Ontario, L4Z 1H8	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Stephen Taborek	 	 
	 

	 	 	 	Facsimile: (905)276 4920	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	UBS LOAN FINANCE LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Tavrow	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Richard L. Tavrow	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Osta	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Irja R. Osta	 	 
	 

	 	 	 	Title: Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	677 Washington Blvd.	 	 
	 

	 	 	 	Stanford, CT 06901	 	 
	 

	 	 	 	Attention: David Vitti	 	 
	 

	 	 	 	Facsimile: (203)719-3888	 	 
	 
	 	 	 	 	 	 





104









 






	 	 	 	 	 	 	 
	Name of Institution:	 	CREDIT SUISSE, Cayman Islands Branch
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas Cantello	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Thomas Cantello	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Shaheen Malik	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Shaheen Malik	 	 
	 

	 	 	 	Title: Associate	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	11 Madison Ave	 	 
	 

	 	 	 	New York, NY 10010	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Thomas Cantello	 	 
	 

	 	 	 	Facsimile: 212 743 1212	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	CREDIT SUISSE, Toronto Branch
	 	 	As a Canadian Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Alain Daoust	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Alain Daoust	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Shaheen Malik	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Bruce F. Wetherly	 	 
	 

	 	 	 	Title: Director, Credit Suisse, Toronto Branch	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	One First Canadian Place	 	 
	 

	 	 
	 	Suite 3000, P.O. Box 301	 	 
	 

	 	 	 	Toronto, Ontario, Canada	 	 
	 

	 	 	 	M5X 1C9	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Alain Daoust	 	 
	 

	 	 	 	Facsimile: 416-352-4576	 	 







105