EX-4.1



 





EXHIBIT 4.1

Execution Version




 





FIFTH AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of December 19, 2006




among




ROBBINS & MYERS, INC.,




ROBBINS & MYERS FINANCE EUROPE B.V.,




THE LENDERS NAMED HEREIN,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and

Issuing Bank,




BMO CAPITAL MARKETS FINANCING, INC.,

as Syndication Agent,




and




CITIZENS BANK OF PENNSYLVANIA

and

FIFTH THIRD BANK

as Co-Documentation Agents




 





J.P. MORGAN SECURITIES INC.,

SOLE LEAD ARRANGER AND SOLE BOOK MANAGER




 









 





	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Terms Generally
	 	 	23	 
	SECTION 1.03. Types of Borrowings
	 	 	23	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	THE CREDITS
	 	 	23	 
	 
	 	 	 	 
	SECTION 2.01. Revolving Credit Facility
	 	 	23	 
	SECTION 2.02. Commitment to Make Loans
	 	 	23	 
	SECTION 2.03. Loans

	 	 	24	 
	
SECTION 2.04. Notice of Borrowings
	 	 	27	 
	SECTION 2.05. Noteless Agreement; Repayment of Loans
	 	 	28	 
	SECTION 2.06. Fees

	 	 	29	 
	
SECTION 2.07. Interest on Loans
	 	 	30	 
	SECTION 2.08. Default Interest
	 	 	31	 
	SECTION 2.09. Alternate Rate of Interest
	 	 	31	 
	SECTION 2.10. Termination and Reduction of Commitments; Increase of Commitments
	 	 	32	 
	SECTION 2.11. Conversion and Continuation Options
	 	 	33	 
	SECTION 2.12. Mandatory Repayments and Prepayments
	 	 	34	 
	SECTION 2.13. Optional Prepayments
	 	 	36	 
	SECTION 2.14. Reserve Requirements; Change in Circumstances
	 	 	36	 
	SECTION 2.15. Change in Legality
	 	 	38	 
	SECTION 2.16. Indemnity
	 	 	39	 
	SECTION 2.17. Pro Rata Treatment
	 	 	39	 
	SECTION 2.18. Sharing of Setoffs
	 	 	40	 
	SECTION 2.19. Payments
	 	 	40	 
	SECTION 2.20. Taxes
	 	 	41	 
	
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate
	 	 	44	 
	SECTION 2.22. Swingline Loans
	 	 	46	 
	SECTION 2.23. Letters of Credit
	 	 	47	 
	SECTION 2.24. Existing Letters of Credit
	 	 	51	 
	SECTION 2.25. Extension of Revolving Credit Maturity Date
	 	 	51	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	52	 
	 
	 	 	 	 
	SECTION 3.01. Organization, Powers
	 	 	52	 
	SECTION 3.02. Authorization
	 	 	52	 
	SECTION 3.03. Enforceability
	 	 	52	 






i









 






	 	 	 	 	 
	SECTION 3.04. Consents and Governmental Approvals
	 	 	53	 
	SECTION 3.05. Financial Statements, Undisclosed Liabilities
	 	 	53	 
	SECTION 3.06. No Material Adverse Change
	 	 	53	 
	SECTION 3.07. Title to Properties, Possession Under Leases
	 	 	53	 
	SECTION 3.08. Subsidiaries
	 	 	54	 
	SECTION 3.09. Litigation; Compliance with Laws
	 	 	54	 
	SECTION 3.10. Agreements
	 	 	54	 
	SECTION 3.11. Federal Reserve Regulations
	 	 	55	 
	SECTION 3.12. Investment Company Act
	 	 	55	 
	SECTION 3.13. Use of Proceeds
	 	 	55	 
	SECTION 3.14. Tax Returns
	 	 	55	 
	SECTION 3.15. No Material Misstatements
	 	 	55	 
	SECTION 3.16. Employee Benefit Plans
	 	 	56	 
	SECTION 3.17. Environmental and Safety Matters
	 	 	56	 
	SECTION 3.18. Security Interests
	 	 	57	 
	SECTION 3.19. (a) Solvency
	 	 	57	 
	SECTION 3.20. Labor Matters
	 	 	58	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	CONDITIONS OF LENDING
	 	 	58	 
	 
	 	 	 	 
	SECTION 4.01. Conditions Precedent to the Effective Date
	 	 	58	 
	SECTION 4.02. All Credit Events
	 	 	61	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	62	 
	 
	 	 	 	 
	SECTION 5.01. Existence, Businesses and Properties
	 	 	62	 
	SECTION 5.02. Insurance
	 	 	62	 
	SECTION 5.03. Obligations and Taxes
	 	 	63	 
	SECTION 5.04. Financial Statements, Reports, etc.
	 	 	63	 
	SECTION 5.05. Other Information
	 	 	64	 
	SECTION 5.06. ERISA

	 	 	65	 
	
SECTION 5.07. Maintaining Records, Access to Properties and Inspections
	 	 	66	 
	SECTION 5.08. Use of Proceeds
	 	 	66	 
	SECTION 5.09. Interest Rate Protection Agreements
	 	 	66	 
	SECTION 5.10. Fiscal Year
	 	 	66	 
	SECTION 5.11. Compliance with Environmental Laws; Preparation of Environmental Reports
	 	 	66	 
	SECTION 5.12. Subsidiaries
	 	 	67	 
	SECTION 5.13. Further Assurances
	 	 	67	 






 









 






	 	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	68	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	68	 
	SECTION 6.02. Negative Pledge
	 	 	69	 
	SECTION 6.03. Certain Amendments
	 	 	71	 
	SECTION 6.04. Investments, Loans and Advances
	 	 	71	 
	SECTION 6.05. Mergers, Consolidations, Dispositions and Acquisitions
	 	 	73	 
	SECTION 6.06. Dividends, Distributions and Other Restricted Payments
	 	 	75	 
	SECTION 6.07. Impairment of Security Interests
	 	 	76	 
	SECTION 6.08. Limitation on Restrictions on Subsidiary Dividends, etc.
	 	 	76	 
	SECTION 6.09. No Other Negative Pledges
	 	 	76	 
	SECTION 6.10. Transactions with Affiliates and Shareholders
	 	 	76	 
	SECTION 6.11. Business of Borrower and Subsidiaries
	 	 	77	 
	SECTION 6.12. Financial Covenants
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	EVENTS OF DEFAULT
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT AND ISSUING BANK
	 	 	80	 
	 
	 	 	 	 
	SECTION 8.01. Appointment and Authorization
	 	 	80	 
	SECTION 8.02. Liability of the Administrative Agent
	 	 	81	 
	SECTION 8.03. Action by the Administrative Agent
	 	 	82	 
	SECTION 8.04. Successor Administrative Agent
	 	 	82	 
	SECTION 8.05. Administrative Agent and Affiliate
	 	 	82	 
	SECTION 8.06. Indemnification
	 	 	82	 
	SECTION 8.07. Credit Decision
	 	 	83	 
	SECTION 8.08. Collateral Agency Agreement
	 	 	83	 
	SECTION 8.09. Syndication Agent, Documentation Agent, etc.
	 	 	83	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	83	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	83	 
	SECTION 9.02. Survival of Agreement and Indemnities
	 	 	84	 
	SECTION 9.03. Binding Effect
	 	 	84	 
	SECTION 9.04. Successors and Assigns
	 	 	85	 
	SECTION 9.05. Expenses; Indemnity
	 	 	88	 
	SECTION 9.06. Right of Setoff
	 	 	90	 
	SECTION 9.07. Applicable Law
	 	 	90	 






 









 






	 	 	 	 	 
	SECTION 9.08. Waivers; Amendment
	 	 	90	 
	SECTION 9.09. Interest Rate Limitation
	 	 	92	 
	SECTION 9.10. Entire Agreement
	 	 	92	 
	SECTION 9.11. Severability
	 	 	92	 
	SECTION 9.12. Counterparts
	 	 	92	 
	SECTION 9.13. Headings
	 	 	93	 
	SECTION 9.14. Remedies
	 	 	93	 
	SECTION 9.15. Jurisdiction, Consent to Service of Process; Waiver of Jury Trial
	 	 	93	 
	SECTION 9.16. Legend

	 	 	94	 
	
SECTION 9.17. Judgment Currency
	 	 	94	 
	SECTION 9.18. Confidentiality
	 	 	94	 
	SECTION 9.19. USA PATRIOT Act
	 	 	95	 
	 
	 	 	 	 
	ARTICLE X
	 	 	96	 
	 
	 	 	 	 
	SECTION 10.01. Guaranty of Payment
	 	 	96	 
	SECTION 10.02. Acceptance of Guaranty; No Setoffs
	 	 	96	 
	SECTION 10.03. Nature of Guaranty; Continuing, Absolute and Unconditional
	 	 	96	 
	SECTION 10.04. Dealings with the Subsidiary Borrower
	 	 	98	 
	SECTION 10.05. Subrogation
	 	 	98	 
	SECTION 10.06. Collateral
	 	 	98	 
	SECTION 10.07. Rights to Payments, Etc.
	 	 	98	 
	SECTION 10.08. No Waiver
	 	 	99	 
	SECTION 10.09. Setoff
	 	 	99	 
	SECTION 10.10. Severability
	 	 	99	 
	SECTION 10.11. Miscellaneous
	 	 	100	 







 









 








	 	 	 
	Schedules
	 	 
	Schedule 1.02

	 	Existing Letters of Credit
	Schedule 2.02(a)

	 	Revolving Credit Commitment
	Schedule 3.05(b)

	 	Liabilities
	Schedule 3.08

	 	Subsidiaries
	Schedule 3.09

	 	Litigation; Compliance with Laws
	Schedule 3.10

	 	Material Contracts
	Schedule 3.16

	 	Employee Benefit Plans
	Schedule 3.17

	 	Environmental Matters
	Schedule 3.18

	 	Filings
	Schedule 3.20

	 	Labor Matters
	Schedule 5.14

	 	Foreign Wholly-Owned Subsidiaries
	Schedule 6.01

	 	Indebtedness
	Schedule 6.02

	 	Liens
	Schedule 6.04

	 	Investments
	 
	 	 
	Exhibits
	 	 
	 
	 	 
	Exhibit A-1

	 	Form of Revolving Credit Note
	Exhibit A-2

	 	Form of Swingline Note
	Exhibit B-1

	 	Form of Borrower’s Consent and Agreement
	Exhibit B-2

	 	Form of Subsidiaries’ Consent and Agreement
	Exhibit C

	 	[Intentionally Omitted]
	Exhibit D

	 	Form of Assignment and Acceptance
	Exhibit E

	 	[Intentionally Omitted]
	Exhibit F

	 	Form of Compliance Certificate
	Exhibit G

	 	Form of Supplemental Agreement
	Exhibit H-1

	 	Form of Notice of Borrowing/Conversion
	Exhibit H-2

	 	Form of Notice of Foreign Currency Revolving Loan Borrowing
	Exhibit I

	 	Form of Subordinated Note






v









 





     FIFTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 19, 2006, among ROBBINS &
MYERS, INC., an Ohio corporation, ROBBINS & MYERS FINANCE EUROPE B.V., a Netherlands corporation,
the Lenders (as defined in this Agreement), and JPMORGAN CHASE BANK, N.A., a national banking
association, as Administrative Agent and an Issuing Bank.



RECITALS




     The Borrower (such term, and all other capitalized terms in this paragraph, being used as
defined in this Agreement below) requested the Existing Lenders to extend or continue, and the
Existing Lenders extended or continued on December 23, 2005, credit to the Borrower pursuant to the
terms and conditions of the Existing Credit Agreement. The Borrower has requested that certain
amendments and modifications be made to the Existing Credit Agreement. The Lenders are willing to
do so upon the terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree that, on the Effective Date, this Agreement will become effective and the Existing
Credit Agreement will be amended and restated in its entirety to read as follows:



ARTICLE I




DEFINITIONS




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



     “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.



     “ABR Loan” shall mean any Revolving Loan or Swingline Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.



     “Acquired Entity” shall have the meaning set forth in Section 6.04(g).



     The term “additional amounts” shall have the meaning assigned to that term in Section
2.20(a).



     “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum equal to the sum of (a) the product of (i) the LIBO
Rate in effect for that Interest Period and (ii) if applicable, Statutory Reserves, plus (b) if
applicable, Mandatory Costs (each of the foregoing components of the Adjusted LIBO Rate rounded
upwards, if necessary, to the next 1/16 of 1%).



     “Administrative Agent” shall mean JPMorgan, in its capacity as administrative agent
for the Lenders under this Agreement, and its successors in that capacity.



     “Administrative Questionnaire” shall mean, with respect to each Lender, the
administrative questionnaire in the form submitted to that Lender by the Administrative Agent and
returned to the Administrative Agent duly completed by the applicable Lender.



 









 





     “Affiliate” shall mean, when used with respect to a specified person, another person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified.



     “Aggregate Commitment” shall mean the aggregate of the Revolving Credit Commitments of
all the Lenders, as reduced or increased from time to time pursuant to the terms hereof. The
initial Aggregate Commitment is $150,000,000.



     “Aggregate Foreign Currency Commitment” shall mean an amount equal to $75,000,000.



     “Aggregate Outstanding Credit Exposure” shall mean, at any time, the sum of the Dollar
Amount of all then outstanding Revolving Loans and Swingline Loans plus the Dollar Amount of all
then outstanding Letter of Credit Exposure.



     “Aggregate Subsidiary Borrower Commitment” shall mean an amount equal to $75,000,000.



     “Agreement” shall mean this Fifth Amended and Restated Credit Agreement, as amended,
modified, extended, restated or supplemented from time to time.



     “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Federal Funds Effective Rate in
effect on such day plus 0.50% and (b) the Prime Rate in effect on such day. If the Administrative
Agent shall have determined (which determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of
this Agreement, the Alternate Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise to that inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective on the effective date of the applicable change in the Prime
Rate or the Federal Funds Effective Rate, respectively, without notice to the Borrowers.



     “Applicable Facility Fee Rate” shall mean the applicable percentage rate per annum set
forth on the Pricing Schedule opposite the heading “Facility Fee”.



     “Applicable Laws” shall have the meaning assigned to such term in Section 3.09(b).



     “Applicable LC Fee Rate” shall mean the applicable percentage rate per annum set forth
on the Pricing Schedule opposite the heading “Letter of Credit Fee”.



     “Applicable Margin” shall mean, with respect to any Borrowing at any time, the
percentage rate per annum which is applicable at such time with respect to Borrowings of such Type
as set forth in the Pricing Schedule.



     “Applicable Office” shall mean (i) with respect to all matters pertaining to Revolving
Loans made to the Subsidiary Borrower the London office, branch, subsidiary or Affiliate of the
Administrative Agent as the Administrative Agent shall designate, and (ii) for all other purposes



 









 







of this Agreement, the Chicago, Illinois office of the Administrative Agent at the address set
forth in Section 9.01 or such other office of the Administrative Agent as the Administrative Agent
shall designate.



     “Applicable Percentage” of any Lender shall mean a fraction (expressed as a
percentage) the numerator of which is such Lender’s Revolving Credit Commitment (or, after the
Revolving Credit Commitments have been terminated, such Lender’s share of the Aggregate Outstanding
Credit Exposure) and the denominator of which is the aggregate of all Revolving Credit Commitments
(or, after the Revolving Credit Commitments have been terminated, the Aggregate Outstanding
Exposure).



     “Applicable Time” shall mean London time with respect to all matters pertaining to
Revolving Loans made to the Subsidiary Borrower and Eastern Standard Time for all other purposes of
this Agreement.



     “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



     “Arranger” shall mean J.P. Morgan Securities Inc.



     “Asset Sale” shall mean any sale, lease, transfer, assignment, condemnation, taking or
other disposition or series of related sales, leases, transfers, assignments or dispositions
(including dispositions in the nature of casualties, to the extent covered by insurance) of any
businesses, business units, assets (including licenses, trademarks and other intangibles and the
Capital Stock of any Subsidiary) or other properties of the Borrower or any Subsidiary (each
referred to for the purposes of this definition as a “disposition”) by the Borrower or any of its
Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction)
other than (i) a disposition by a Subsidiary to the Borrower, (ii) a disposition by the Borrower or
a Subsidiary to a Wholly Owned Subsidiary, and (iii) a disposition permitted by Sections 6.05(a),
(b), (c), (d), (e), (g), (m) and (n).



     “Assignment and Acceptance” shall mean an assignment agreement in the form of Exhibit
D or such other form as shall be approved by the Administrative Agent.



     “Bank Guarantee” shall mean a Guarantee of any Lender with respect to Indebtedness
issued by the Borrower or any of its Subsidiaries; provided, that, nothing in this
definition shall be construed as a commitment or agreement of any Lender to issue any such Bank
Guarantee.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United
States.



     “Borrower” shall mean Robbins & Myers, Inc., an Ohio corporation, and its successors.



     “Borrowers” shall mean the Borrower and the Subsidiary Borrower and “a
Borrower” shall mean either of the Borrowers.



 









 





     “Borrower’s Consent and Agreement” shall mean the Borrower’s Consent and Agreement
dated as of the Effective Date between the Borrower and the Administrative Agent in the form
attached hereto as Exhibit B-1.



     “Borrowing” shall mean a group of Loans of a single Class and Type made by the Lenders
on a single date and as to which a single Interest Period is in effect.



     “Breakage Event” shall have the meaning assigned to that term in Section 2.16.



     “Business Day” shall mean (a) with respect to any borrowing, payment or rate selection
of LIBOR Loans, a day (other than a Saturday or Sunday) on which banks generally are open in
Chicago, New York and London for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and dealings in dollars and
the other Foreign Currencies are carried on in the London interbank market (and, if the Loans which
are the subject of such borrowing, payment or rate selection are denominated in Euro, a day which
is a TARGET Day) and (b) for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, New York and London for the conduct of substantially all of
their commercial lending activities and interbank wire transfers can be made on the Fedwire system.



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



     “Capital Stock” of any person shall mean any and all shares, partnership, limited
liability company and other interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) the equity of such person.



     “Carry Over Amount” shall mean, for any Fiscal Year, an amount equal to 50% of the
difference between (i) $10,000,000 and (ii) the aggregate amount of all assets used to pay
dividends on the Capital Stock of the Borrower during such previous Fiscal Year.



     “Cash Equivalents” shall mean:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America) or by a government issuing a Foreign Currency and having a sovereign credit rating
from Standard & Poor’s Rating Service, a division of The McGraw Hill Companies, Inc. of “A”
or higher, in each case maturing within 180 days from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 180 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating



 









 







obtainable from Standard & Poor’s Rating Service, a division of The McGraw Hill
Companies, Inc. or from Moody’s Investors Service, Inc. respectively;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any Lender or any
Affiliate of a Lender (in each case which Lender or Affiliate of a Lender has a long term
issuer rating of at least “A” or higher) or by any commercial bank organized under the laws
of the United States of America or any State thereof, which has a combined capital and
surplus and undivided profits of not less than $300,000,000;




     (d) money market funds substantially all of whose assets are comprised of securities of
the types described in (a) through (c) above;




     (e) cash deposits in any deposit account or in any cash collateral account with any
Lender; and




     (f) other investment instruments approved in writing by the Administrative Agent and
offered by financial institutions which have a combined capital and surplus and undivided
profits of not less than $300,000,000.



     “Change of Control” means and shall be deemed to have occurred on the earliest of (a)
the date upon which a transaction or event or any series of transactions or events occurs that is
required to be reported on Schedule 13D pursuant to Section 13(d) of the Exchange Act and the
regulations promulgated thereunder, whereby a person or group, as used for purposes of Section
13(d) of the Exchange Act (other than M.H.M. & Co., Ltd., an Ohio limited partnership (“M.H.M.”),
so long as the members of the Murch family, individually or collectively, remain the Beneficial
Owners of a majority of the Voting Stock of M.H.M.), has or will become the Beneficial Owner of 30%
or more of the outstanding Voting Shares or the date upon which the Borrower first learns that a
person or group (other than M.H.M.) has or will become the Beneficial Owner of 30% or more of the
outstanding Voting Shares; (b) the date of a change in the composition of the Board of Directors of
the Borrower (the “Board of Directors”) such that individuals who were members of the Board
of Directors on the date two years prior to such change (or who were subsequently elected to fill a
vacancy in the Board of Directors by the affirmative vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such two year period) no longer
constitute a majority of the Board of Directors; (c) the date either the Board of Directors or
shareholders approve a merger or consolidation of the Borrower with any other person, other than a
merger or consolidation which would result in the Voting Shares outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being converted into Voting
Shares of the surviving entity) at least 80% of the total voting power represented by the Voting
Shares of such surviving entity outstanding immediately after such merger or consolidation; or (d)
the date either the Board of Directors or shareholders of the Borrower approve a plan of
liquidation of the Borrower or an agreement for the sale, lease, transfer or other disposition by
the Borrower of all or substantially all the Borrower’s assets. For purposes of this definition,
“Beneficial Owner” means the person or group has the power, directly or indirectly, to vote or
direct the vote of, and the power to dispose, or direct the disposition of, Voting Shares or Voting
Stock, as the case may be; “Voting Shares”



 









 







means the Capital Stock of the Borrower entitled to vote generally in the election of
directors of the Borrower; and “Voting Stock” means the Capital Stock of M.H.M. entitled to vote
generally on the management and affairs of M.H.M.



     “Charges” shall have the meaning assigned to that term in Section 9.09.



     “Class” shall have the meaning assigned to that term in Section 1.03.



     “Code” shall mean the Internal Revenue Code of 1986, as the same may be amended from
time to time.



     “Collateral” shall mean all the collateral pledged or purported to be pledged pursuant
to any of the Collateral Documents.



     “Collateral Agency Agreement” shall mean the Intercreditor and Collateral Agency
Agreement, dated as of May 15, 1998, among the Borrower, the Domestic Subsidiaries, the Collateral
Agent, the Lenders, the Noteholders, Bank One Ohio and Nationsbank, N.A., as amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms.



     “Collateral Agent” shall mean J.P. Morgan Trust Company, National Association
(successor in interest to Bank One Trust Company, N.A.), as Collateral Agent under the Collateral
Agency Agreement, and its successors and assigns thereunder.



     “Collateral Documents” shall mean the Pledge Agreement, the Collateral Agency
Agreement and all other documents and instruments executed and delivered pursuant to the terms
hereof or thereof in order to secure any Obligations or perfect any Lien granted for the benefit of
the Lenders and the Noteholders pursuant thereto.



     “Commercial LC” shall mean a Letter of Credit which is the payment mechanism for a
commercial trade transaction.



     “Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit
Commitment and, in the case of the Swingline Lender, its Swingline Commitment and, in the case of
an Issuing Bank, its Letter of Credit Commitment.



     “Commonly Controlled Entity” shall mean an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of
a group which includes the Borrower and which is treated as a single employer under Section 414 of
the Code.



     “Confidential Information Memorandum” shall mean the confidential information
memorandum of the Borrower dated November, 2006.



     “Consolidated Assets” shall mean, as of the date of determination, the total of all
assets which would in accordance with GAAP be included on a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of such date, less the sum of: (i) any surplus
resulting from any write-up of assets subsequent to the date of this Agreement, (ii) goodwill,
(iii)



 









 







patents, trademarks, trade names and copyrights, and (iv) any other amount in respect of an
intangible which should be classified as an asset on such balance sheet in accordance with GAAP.



     “Consolidated EBITDA” shall mean, for any period for any person, Consolidated Net
Income of such person for such period, plus, to the extent deducted in computing such
Consolidated Net Income for such period, the sum of (i) Consolidated Interest Expense for such
period, (ii) Tax Expense for such period, (iii) depreciation, depletion, amortization of
intangibles and other non-cash charges or non-cash losses, and (iv) the amount, not to exceed
$7,000,000 in the aggregate, of cash restructuring charges for severance and other costs after
August 31, 2005, and (v) the amount of all non-cash restructuring and impairment charges,
minus, to the extent added in computing such Consolidated Net Income for such period, the
sum of (i) any interest income, and (ii) any non-cash income or non-cash gains during such period
that requires footnote disclosure on financial statements, reports or other filings pursuant to or
in accordance with GAAP or applicable SEC regulations, all as determined on a consolidated basis
with respect to such person and its Consolidated Subsidiaries in accordance with GAAP.



     “Consolidated Interest Coverage Ratio” shall mean, for the Borrower as of any date,
the ratio of (a) Consolidated EBITDA for the Reference Period with respect to such date, to (b)
Consolidated Interest Expense for such Reference Period; provided, that, if, since
the beginning of the applicable Reference Period, (A) the Borrower or any Consolidated Subsidiary
has issued or incurred any Indebtedness that remains outstanding as of the end of such Reference
Period in connection with any Permitted Acquisition or pursuant to Sections 6.01(d), 6.01(g) or
6.01(j), Consolidated Interest Expense for such Reference Period shall be calculated after giving
effect on a pro forma basis to (I) such Indebtedness as if such Indebtedness had been issued or
incurred on the first day of such Reference Period and (II) the discharge of any other Indebtedness
repaid, repurchased or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such Reference Period, (B) the Borrower or any
Consolidated Subsidiary shall have made any Asset Sale with a net book value in excess of
$2,500,000, the Consolidated EBITDA for the applicable Reference Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets which are
the subject of such Asset Sale for such Reference Period, or increased by an amount equal to the
Consolidated EBITDA (if negative), directly attributable thereto for such Reference Period and
Consolidated Interest Expense for such Reference Period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the Borrower or any
Consolidated Subsidiary repaid or otherwise discharged with respect to the Borrower and its
continuing Consolidated Subsidiaries in connection with such Asset Sale for such Reference Period
(or, if the Capital Stock of any Consolidated Subsidiary is sold, the Consolidated Interest Expense
for such Reference Period directly attributable to the Indebtedness of such Consolidated Subsidiary
to the extent the Borrower and its continuing Consolidated Subsidiaries are no longer liable for
such Indebtedness after such sale), and (C) the Borrower or any Consolidated Subsidiary shall have
made a Permitted Acquisition, Consolidated EBITDA for the applicable Reference Period shall be
calculated after giving pro forma effect thereto as if such Permitted Acquisition occurred on the
first day of such Reference Period. For purposes of this definition, whenever pro forma effect is
to be given to an acquisition of assets, (i) the amount of income or earnings relating thereto and
the amount of Consolidated Interest Expense associated with any Indebtedness issued or incurred in
connection therewith, the pro forma



 









 







calculations shall be determined in good faith by a responsible Financial Officer of the
Borrower and (ii) if any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the
date of the beginning of the applicable Reference Period had been the applicable rate for the
entire period. Whenever pro forma effect is to be given to any event or for any Reference Period,
the pro forma calculations made shall be cumulative of all events for which pro forma effect is to
be given that have occurred within or that relate to the applicable Reference Period.



     “Consolidated Interest Expense” shall mean, for any period for any person, the sum
(without duplication) of (a) the gross amount of interest expense, both expensed and capitalized,
of such person and its Consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP, for such period, exclusive of any non-cash interest expense related to original issue
discount notes and pay-in-kind notes, and (b) all amounts paid (net of any amounts received) by
such person and its Consolidated Subsidiaries pursuant to Interest Rate Protection Agreements for
such period.



     “Consolidated Leverage Ratio” shall mean, for the Borrower as of any date, the ratio
of (a) Total Debt on such date to (b) Consolidated EBITDA for the Reference Period applicable to
such date; provided, that, if, since the beginning of the applicable Reference Period, (A) the
Borrower or any Consolidated Subsidiary has issued or incurred any Indebtedness that remains
outstanding as of the end of such Reference Period in connection with any Permitted Acquisition or
pursuant to Sections 6.01(d), 6.01(g) or 6.01(j), Consolidated Interest Expense for such Reference
Period shall be calculated after giving effect on a pro forma basis to (I) such Indebtedness as if
such Indebtedness had been issued or incurred on the first day of such Reference Period and (II)
the discharge of any other Indebtedness repaid, repurchased or otherwise discharged with the
proceeds of such new Indebtedness as if such discharge had occurred on the first day of such
Reference Period, (B) the Borrower or any Consolidated Subsidiary shall have made any Asset Sale
with a net book value in excess of $2,500,000, the Consolidated EBITDA for such Reference Period
shall be reduced by the amount equal to Consolidated EBITDA (if positive) directly attributable to
the assets which are the subject of such Asset Sale for such Reference Period, or increased by an
amount equal to the Consolidated EBITDA (if negative), directly attributable thereto for such
Reference Period, and Consolidated Interest Expense for such Reference Period shall be reduced by
an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of
the Borrower or any Consolidated Subsidiary repaid or otherwise discharged with respect to the
Borrower and its continuing Consolidated Subsidiaries in connection with such Asset Sale for such
Reference Period (or, if the Capital Stock of any Consolidated Subsidiary is sold, the Consolidated
Interest Expense for such Reference Period directly attributable to the Indebtedness of such
Consolidated Subsidiary to the extent the Borrower and its continuing Consolidated Subsidiaries are
no longer liable for such Indebtedness after such sale), and (C) the Borrower or any Consolidated
Subsidiary shall have made a Permitted Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto as if such Permitted Acquisition occurred
on the first day of such Reference Period. For purposes of this definition, whenever pro forma
effect is to be given to an acquisition of assets, (i) the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any Indebtedness issued or
incurred in connection therewith, the pro forma calculations shall be determined in good faith by a
responsible Financial Officer of the Borrower and (ii) if any



 









 







Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on the date of the
beginning of the applicable Reference Period had been the applicable rate for the entire period.
Whenever pro forma effect is to be given to any event or for any Reference Period, the pro forma
calculations made shall be cumulative of all events for which pro forma effect is to be given that
have occurred within or that relate to the applicable Reference Period.



     “Consolidated Net Income” shall mean, for any period for any person, net income or
loss of such person and its Consolidated Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided, that, there shall be excluded from such
calculation of net income or loss (a) the income of any person in which any other person (other
than such person or any of its subsidiaries or any director holding qualifying shares in accordance
with applicable law) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to such person or any of its Wholly Owned Subsidiaries by such other
person during such periods, (b) the income (or loss) of any other person accrued prior to the date
it becomes a subsidiary of such person or is merged into or consolidated with such person or any of
its subsidiaries or the date that such other person’s assets are acquired by such person or any of
its subsidiaries, (c) the income of any subsidiary of such person to the extent that the
declaration or payment of dividends or similar distributions by such subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that subsidiary,
(d) any after-tax gains attributable to sales of assets out of the ordinary course of business, and
(e) (to the extent not included in clauses (a) through (d) above) any non-cash extraordinary gains
(or losses).



     “Consolidated Net Worth” shall mean, as of any date of determination, the total of all
amounts which would in accordance with GAAP be included on a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of such date as capital stock, additional paid-in
capital and retained earnings, less any amounts attributable to Disqualified Stock.



     “Consolidated Subsidiaries” shall mean, for any person, all subsidiaries of such
person that should be consolidated with such person for financial reporting purposes in accordance
with GAAP.



     “Control” shall mean the possession, direct or indirect, of the power to direct or
cause the direction of the management or policies of a person, whether through the ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.



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



     “Determination Date” shall mean:




     (a) in connection with the issuance of, or participation in, any Foreign Currency
Letter of Credit, the Business Day of such issuance or participation;



 









 






     (b) in connection with any extension of any Foreign Currency Letter of Credit, the
Business Day of such extension;




     (c) the date of any reduction of the Revolving Credit Commitments pursuant to the terms
of Section 2.10;




     (d) for purposes of Section 2.12(c), the last Business Day of each calendar month;




     (e) in connection with the origination of any new Foreign Currency Revolving Loan, the
Business Day which is the earliest of the date such loan is made or the date the interest
rate is set, as applicable; or




     (f) in connection with any extension, conversion, or continuation of any Foreign
Currency Revolving Loan, the last Business Day of each month or the Business Day which is
the earlier of the date such Loan is extended, converted or continued, or the date the
interest rate is set, as applicable, in connection with any extension, conversion or
continuation.



     “Disqualified Stock” of any person shall mean (a) any Capital Stock of such person or
any subsidiary of such person which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening of any event or
otherwise (i) matures or is mandatorily redeemable or subject to any mandatory repurchase
requirement, pursuant to a sinking fund obligation or otherwise, (ii) is convertible into or
exchangeable or exercisable for Indebtedness or Disqualified Stock, or (iii) is redeemable or
subject to any repurchase requirement exercisable at the option of the holder thereof, in whole or
in part, in each case on or prior to the first anniversary of the Revolving Credit Maturity Date
(or, if earlier, the first anniversary of the date on which all the Obligations have been
indefeasibly paid in full in cash and the Commitments have been terminated) and (b) any Preferred
Stock of a subsidiary of such person.



     “Dollar Amount” shall mean (a) with respect to dollars or an amount denominated in
dollars, such amount and (b) with respect to an amount of any Foreign Currency or an amount
denominated in such Foreign Currency, the Dollar Equivalent of such amount on the applicable date
of determination.



     “Dollar Equivalent” shall mean, on any date, with respect to an amount denominated in
a Foreign Currency, the amount of dollars into which the Administrative Agent could, in accordance
with its practice from time to time in the interbank foreign exchange market, convert such amount
of such Foreign Currency at its spot selling rate of exchange effective for that date for the
immediate exchange of such currencies (inclusive of all reasonable related costs of conversion, if
any are actually incurred, and based on the market rates available to Administrative Agent)
applicable to the relevant transaction at or about 11:00 a.m., Applicable Time, on such date.



     “dollars” or “$” shall mean lawful money of the United States of America.



 









 





     “Domestic Subsidiary” shall mean any Subsidiary incorporated or organized under the
laws of the United States of America, any state thereof or the District of Columbia;
provided, that, for purposes of this Agreement, Robbins & Myers International Sales
Company, Inc., a U.S. Virgin Islands Corporation, shall not be considered a Domestic Subsidiary.



     “Eastern Standard Time” shall mean Eastern Standard Time or, if applicable, Daylight
Savings Time in the eastern time zone in which Dayton, Ohio is located.



     “Effective Date” shall have the meaning assigned to such term in Section 4.01.



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



     “Euro” shall mean the euro referred to in Council Regulation (EC) No. 1103/97 dated
June 17, 1997 passed by the Council of the European Union, or, if different, the then lawful
currency of the member states of the European Union that participate in the third stage of Economic
and Monetary Union.



     “Eurodollar Borrowing,” shall mean a Borrowing (including a Foreign Currency
Borrowing) comprised of Revolving Loans bearing interest at a rate based on the Adjusted LIBO Rate.



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



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



     “Excluded Taxes” shall have the meaning assigned to such term in Section 2.20(a).



     “Existing Credit Agreement” shall mean the Fourth Amended and Restated Credit
Agreement dated as of December 23, 2005 among the Borrower, the Subsidiary Borrower, the lenders
named therein, JP Morgan, as Administrative Agent and as an Issuing Bank, Harris N.A., as
Syndication Agent, and National City Bank, as Documentation Agent, as in effect on the date hereof
prior to giving effect hereto.



     “Existing Lenders” means Lenders party to the Existing Credit Agreement as of the date
hereof.



     “Existing Letter of Credit” means the “Letters of Credit” issued pursuant to the
Existing Agreement and identified on Schedule 1.02 hereto.



     “‘Facility Fee” shall have the meaning assigned to that term in Section 2.06(a).



     “Fair Market Value” shall mean with respect to any Permitted Acquisition, the value
that would be obtained in an arm’s-length transaction between an informed and willing seller under
no compulsion to sell and an informed and willing buyer.



     “Federal Funds Effective Rate” shall mean, for any day, an interest rate per annum
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, as published for such day by the
Federal Reserve Bank of New York, or, if such rate is not so published for such day, the average of
the quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. Each change in the Federal Funds
Effective Rate shall be effective on the date thereof, without notice to the Borrowers.



     “Fee Letter” shall have the meaning assigned to such term in Section 2.06(c).



     “Fees” shall mean the Facility Fees, the Letter of Credit Fees, the Fronting Fees and
the other fees payable pursuant to the Fee Letter.



     “Financial Officer” of any corporation shall mean the chief financial officer,
principal accounting officer or similar officer of such corporation.



     “Fiscal Year” shall mean, when used with respect to any year, the Fiscal Year of the
Borrower ending on August 31 of such year.



     “Foreign Currency” shall mean (a) with respect to the Foreign Currency Letters of
Credit, such currencies (other than dollars) as may be agreed upon by the Issuing Banks and the
Borrower, from time to time, and (b) with respect to Foreign Currency Revolving Loans, Euros, Swiss
francs, British pounds sterling and Canadian dollars.



     “Foreign Currency Borrowing” shall mean a Borrowing comprised of Foreign Currency
Revolving Loans.



     “Foreign Currency Equivalent” shall mean, on any date, with respect to an amount
denominated in dollars, the amount of any applicable Foreign Currency into which the Administrative
Agent could, in accordance with its practice from time to time in the interbank foreign exchange
market, convert such amount of dollars at its spot rate of exchange (inclusive of all reasonable
related costs of conversion, if any are actually incurred) applicable to the relevant transaction
at or about 11:00 a.m., Applicable Time, on such date.



     “Foreign Currency Letter of Credit Exposure” shall mean all Letter of Credit Exposure
attributable to Foreign Currency Letters of Credit.



     “Foreign Currency Letters of Credit” shall mean Letters of Credit issued in a Foreign
Currency pursuant to Section 2.23(a)(ii).



     “Foreign Currency Revolving Loan” shall have the meaning assigned to such term in
Section 2.03.



     “Foreign Subsidiary” shall mean any Subsidiary which is not a Domestic Subsidiary
(including, without limitation, Robbins & Myers International Sales Company, Inc.).



     “Fronting Fee” shall have the meaning assigned to such term in Section 2.06(b).



 









 





     “Fund” shall mean any person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.



     “GAAP” shall mean United States generally accepted accounting principles, applied on a
consistent basis.



     “Governmental Authority” shall mean any Federal, state, local or foreign governmental
department, commission, board, bureau, authority, agency, court, instrumentality or judicial or
regulatory body or entity.



     “Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of
such person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any
other person (the “primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Indebtedness, (b) to purchase
property, securities or services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness; provided, that, the term Guarantee shall not include
endorsements for collection or deposit, in either case in the ordinary course of business.



     “Guarantee Agreement” shall mean the Amended and Restated Guarantee Agreement dated as
of May 15, 1998 among the Domestic Subsidiaries and the predecessor of the Collateral Agent, as
amended from time to time.



     “Guaranteed Debt” shall have the meaning assigned to such term in Section 10.01.



     “Guarantor” shall mean any guarantor under the Guarantee Agreement.



     “Hazardous Materials” shall have the meaning assigned to such term in Section 3.17.



     “Indebtedness” of any person shall mean, without duplication, (a) all obligations of
such person for borrowed money or with respect to deposits or advances of any kind made with or to
such person, (b) all obligations of such person evidenced by bonds, debentures, notes or similar
instruments (other than obligations under surety bonds incurred in the ordinary course of
business), (c) all obligations of such person upon which interest charges are customarily paid, (d)
all obligations of such person under conditional sale or other title retention agreements relating
to property or assets purchased by such person, (e) all obligations of such person issued or
assumed as the deferred purchase price of property or services, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not
the obligations secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i) all obligations of
such person in respect of Interest Rate Protection Agreements, (j) all obligations of such person,
contingent or otherwise, as an account party in respect of letters of credit and bankers’
acceptances and (k) all obligations of such person to contribute money or other property to any



 









 







other person. The Indebtedness of any person shall include, without duplication, the
Indebtedness of any partnership in which such person is a general partner and of any trust or other
entity formed or utilized in connection with a securitization of assets of such person.
Notwithstanding the foregoing, the Indebtedness of any person shall exclude all trade accounts
payable, customer advance payments, and accrued expenses determined in accordance with GAAP and all
of which arise or are incurred in the ordinary course of business.



     “Indemnified Party” shall have the meaning assigned to such term in Section 9.05(b).



     “Indemnity, Subrogation and Contribution Agreement” shall mean the Indemnity,
Subrogation and Contribution Agreement dated as of May 15, 1998 among the Borrower and the Domestic
Subsidiaries, as amended from time to time.



     “Intercompany Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary
to (a) any Wholly Owned Subsidiary that is a Domestic Subsidiary or (b) the Borrower.



     “Interest Payment Date” shall mean, with respect to any Loan, all of the following to
the extent applicable: (a) the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part, (b) if such Loan is part of any Eurodollar Borrowing with an Interest
Period of more than three months’ duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months’ duration been applicable to such Borrowing, (c) if
such Loan is part of any Eurodollar Borrowing, the date of any repayment or prepayment of the
Borrowing of which such Loan is a part, (d) if such Loan is a part of any ABR Borrowing, the date
of any prepayment of the Borrowing required pursuant to the terms of Section 2.12 and (e) any
conversion of any Eurodollar Borrowing to any ABR Borrowing.



     “Interest Period” shall mean (a) as to any Eurodollar Borrowing the period commencing
on the date of such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Borrower may elect, subject to the availability thereof, as
determined by the Administrative Agent, and (b) as to any ABR Borrowing (including any ABR
Borrowing comprised of Swingline Loans), the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Revolving Credit Maturity Date and (iii) the date such Borrowing is prepaid
in accordance with Section 2.12; provided, that, if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an Interest Period to, but
excluding, the last day of such Interest Period.



     “Interest Rate Protection Agreement” shall mean any interest rate swap, foreign
currency exchange agreement, collar, cap or other arrangement requiring payments contingent upon
interest rates, which, in each case, is entered into to hedge or mitigate risks to which the
Borrower or any Subsidiary has actual exposure and not for speculative purposes.



 









 





     “Issuing Bank” shall mean each of JPMorgan and up to three additional Lenders
designated by the Borrower with notice to the Administrative Agent, in each case in its capacity as
the issuer thereof with respect to each Letter of Credit hereunder, and its successors in such
capacity. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate. With respect to any
Letter of Credit, “Issuing Bank” means the issuer thereof.



     “JPMorgan” means JPMorgan Chase Bank, N.A., a national banking association.



     “Judgment Currency” shall have the meaning assigned to such term in Section 9.17.



     “Judgment Currency Conversion Date” shall have the meaning assigned to such term in
Section 9.17.



     “Lender” shall mean each financial institution listed on the signature pages hereof,
each assignee which becomes a Lender pursuant to Section 9.04(c), and their respective successors
(including the Swingline Lender).



     “Letter of Credit Availability Period” shall mean the period from and including the
Effective Date to but excluding the earlier of (a) the date five Business Days prior to the
Revolving Credit Maturity Date and (b) the termination of the Revolving Credit Commitments of the
Lenders in accordance with the terms hereof.



     “Letter of Credit Commitment” shall mean the commitment of the Issuing Banks to issue
Letters of Credit pursuant to Section 2.23.



     “Letter of Credit Disbursement” shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.



     “Letter of Credit Exposure” shall mean at any time an amount equal to the sum of (a)
the Dollar Amount of the aggregate undrawn amount of all outstanding Letters of Credit, plus (b)
the aggregate amount of the Dollar Amount of all Letter of Credit Disbursements not yet reimbursed
by the Borrower as provided in Section 2.23. The Letter of Credit Exposure of any Lender at any
time shall mean its Applicable Percentage of the aggregate Letter of Credit Exposure at such time.



     “Letter of Credit Fee” shall have the meaning assigned to that term in Section
2.06(b)(i).



     “Letters of Credit” shall mean any and all letters of credit issued pursuant to
Section 2.23.



     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for the relevant
Interest Period, the applicable British Bankers’ Association LIBOR rate for deposits in the
applicable currency as reported by any generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to (or, in the case of Loans in British pounds
sterling, on) the first day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, if no such British Bankers’ Association LIBOR rate is available, the
applicable LIBO Rate for the relevant Interest Period shall instead be the rate determined by the



 









 







Administrative Agent to be the rate at which JPMorgan or one of its Affiliate Banks offers to
place deposits in the applicable currency with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest
Period, in the approximate amount of JPMorgan’s relevant LIBOR Loan and having a maturity equal to
such Interest Period.



     “LIBOR Loan” shall mean any Revolving Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.



     “Lien” shall mean, with respect to any asset, any mortgage, deed of trust, lien,
pledge, easement, restriction, restrictive covenant, lease, sublease, option, charge, security
interest or encumbrance of any kind in respect of such asset. For purposes hereof, the Borrower or
any Subsidiary 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 a lessor under any conditional sale agreement, capital lease
or title retention agreement relating to such asset.



     “Loan Documents” shall mean this Agreement, the Notes, the Letters of Credit, the
Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement, the Collateral
Documents, the Borrower’s Consent and Agreement, the Subsidiaries’ Consent and Agreement, any
Interest Rate Protection Agreements entered into by the Borrower with any Lender or Affiliate
thereof as permitted hereunder and any Supplemental Agreements.



     “Loan Party” shall have the meaning assigned to such term in Section 9.17.



     “Loans” shall mean any or all of the Revolving Loans and the Swingline Loans.



     “Mandatory Costs” shall mean the cost, expressed as an incremental per annum addition
to the interest rate charged with respect to each LIBOR Loan, determined by the Administrative
Agent as being imputed to a Lender in compliance with any (a) mandatory liquid asset requirements
of the Bank of England and/or the Financial Services Authority (or other United Kingdom
governmental authorities or agencies) and (b) reserve asset requirements of the European Central
Bank.



     “Margin Stock” shall have the meaning assigned to such term under Regulation U.



     “Material Adverse Change” shall mean a material adverse change in the business,
assets, liabilities, financial condition, prospects or results of operations of Borrower and the
Subsidiaries, taken as a whole.



     “Material Adverse Effect” shall mean (a) a materially adverse effect on the material
existing agreements and relationships, business, financial condition or results of operations of
the Borrower and the Subsidiaries, taken as a whole, (b) a material impairment of the ability of
the Borrower or any of the Subsidiaries to perform its material obligations under any Loan Document
to which it is or will be a party or (c) a material impairment of the rights of or benefits
available to the Lenders or the Collateral Agent under any Loan Document. In determining whether
any individual event would result in a Material Adverse Effect, notwithstanding that such event
does not itself have such effect, a Material Adverse Effect shall be deemed to have




 









 




occurred if the cumulative effect of such event and all other then existing events would
result in a Material Adverse Effect.




     “Material Contracts” shall have the meaning assigned to such term in Section 3.10(a).



     “Minimum Compliance Level” has the meaning set forth in Section 6.12(c).



     “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.



     “Multiemployer Plan” shall mean a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.



     “Net Cash Proceeds” shall mean, with respect to any event, an amount equal to (a) the
gross cash proceeds (including insurance proceeds and condemnation awards in the case of any
casualty) actually paid to or actually received by or on behalf of the Borrower or any Subsidiary
from or in respect of such event (including cash received as proceeds from any noncash
consideration received in respect of any such event), less (b) the sum of (i) any expenses
reasonably incurred by the Borrower and the Subsidiaries in respect of such event, including, in
the case of a sale or issuance of Capital Stock, underwriters’ fees, discounts or commissions and,
in the case of a disposition of assets or properties, commissions, (ii) in the case of a
disposition of assets or properties subject to such event, amounts required to be applied to repay
Indebtedness (other than Loans) associated with the assets or properties and (iii) in the case of a
disposition of assets or properties, taxes paid or payable by the Borrower and the Subsidiaries (as
determined reasonably and in good faith by a Financial Officer of the Borrower) in respect of such
event.



     “New Lending Office” shall have the meaning assigned to such term in Section 2.20(f).



     “Non-U.S. Lender” shall have the meaning assigned to such term in Section 2.20(g).



     “Noteholders” shall mean the owners of the Senior Notes.



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



     “Obligation Currency” shall have the meaning assigned to such term in Section 9.17.



     “Obligations” shall mean (a) the Borrowers’ obligations in respect of the due and
punctual payment of principal of and interest (including interest accruing after the filing of a
petition initiating any proceeding referred to in paragraph (g) or (h) of Article VII of this
Agreement) on the Loans and all amounts drawn under the Letters of Credit, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) all Fees,
expenses, indemnities and expense reimbursement obligations of the Borrowers under this Agreement,
the Fee Letter, or any other Loan Document and (c) all other obligations, monetary or otherwise, of
the Borrowers or any of the Subsidiaries under any Loan Document to which it is a party, in each
case, whether now owing or hereafter existing.



     “Officer’s Certificate” shall mean, as to any corporation, a certificate executed on
its behalf by the Chairman of the Board of Directors (if an officer) or its President or one of its
Vice



 









 







Presidents and its Treasurer, or Controller, or one of its Assistant Treasurers or Assistant
Controllers, and, as to any partnership, a certificate executed on behalf of such partnership by
its general partner in a manner which would qualify such certificate as an Officer’s Certificate of
such general partner hereunder.



     “Other Taxes” shall have the meaning assigned to that term in Section 2.20(b).



     “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA or any successor thereto.



     “Permitted Acquisition” shall have the meaning assigned to that term in Section
6.04(g).



     A “person” shall mean any natural person, corporation, business trust, joint venture.
association, company, limited liability company, partnership, government (or any agency or
political subdivision thereof) or other entity.



     “Pfaudler” shall mean Pfaudler-Werke GMBH, a German limited liability company.



     “Plan” shall mean at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.



     “Pledge Agreement” shall mean the Amended and Restated Pledge and Security Agreement
among the Borrower, the Domestic Subsidiaries and the predecessor to the Collateral Agent dated as
of May 15, 1998, as amended from time to time.



     “Preferred Stock”, as applied to the Capital Stock of any corporation, shall mean
Capital Stock of any class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other class of such
corporation.



     “Pricing Schedule” shall mean the Schedule attached hereto identified as such.



     “Prime Rate” shall mean a rate per annum equal to the prime rate of interest announced
from time to time by JPMorgan or its parent (which is not necessarily the lowest rate charged to
any customer), changing when and as said prime rate changes.



     “Purchase Money Indebtedness” shall mean Indebtedness of the Borrower or any
Subsidiary in respect of which a Lien described in Section 6.02(i) is incurred.



     “Reference Period” with respect to any date shall mean the period of four consecutive
fiscal quarters of the Borrower immediately preceding such date or, if such date is the last day of
a fiscal quarter, ending on such date.



     “Register” shall have the meaning assigned to such term in Section 9.04(c).



 









 





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



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



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



     “Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the PBGC has waived either the 30-day notice period or the
penalty for failure to give notice.



     “Required Financial Statements” shall mean, with respect to any period, the financial
statements of the Borrower for such period required under Section 5.04.



     “Required Lenders” shall mean, at any time, Lenders holding Loans (excluding Swingline
Loans), Letter of Credit Exposure, and Swingline Exposure and having Revolving Credit Commitments
representing in the aggregate at least 51% of the sum at such time of (a) the aggregate principal
Dollar Amount of the Loans outstanding (excluding Swingline Loans), (b) the aggregate Dollar Amount
of Letter of Credit Exposure, (c) the aggregate amount of Swingline Exposure and (d) the aggregate
amount of unused Revolving Credit Commitments.



     “Responsible Officer” of any person shall mean and include the president, chief
executive officer, chief operating officer, any financial officer, any vice president, the general
counsel or any other senior officer of such person (or, in the case of a partnership, of a general
partner thereof).



     “Restricted Subsidiary” shall mean (i) all Domestic Subsidiaries of the Borrower, none
of the Capital Stock of which is owned by Unrestricted Subsidiaries and (ii) all Foreign
Subsidiaries of the Borrower, all of the Capital Stock of which is owned directly by the Borrower
or a Wholly Owned Domestic Subsidiary, or any subsidiary described in clauses (i) or (ii) that is
formed or acquired after the date hereof; provided, that, nothing in this
definition shall be deemed to permit any such formation or acquisition of a subsidiary. Each of
such Domestic and Foreign Subsidiaries existing as of the Effective Date are listed on Schedule
3.08.



     “Revolving Credit Availability Period” shall mean the period from and including the
Effective Date to but excluding the termination of the Revolving Credit Commitments of the Lenders
in accordance with the terms hereof.



     “Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Loans.



     “Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment
of such Lender to make Revolving Loans hereunder as set forth on Schedule 2.02(a), or in
the Assignment and Acceptance pursuant to which such Lender assumed its Revolving Credit
Commitment, as applicable, as the same may be reduced or increased from time to time pursuant to
the terms hereof.



 









 





     “Revolving Credit Facility” shall mean the Revolving Loans, the Swingline Loans and
the Letters of Credit provided or participated in by the Lenders to the Borrowers pursuant to this
Agreement and the other Loan Documents.



     “Revolving Credit Maturity Date” shall mean December 19, 2011 or any later date to
which such date is extended pursuant to Section 2.25.



     “Revolving Credit Notes” shall mean promissory notes of the Borrowers, substantially
in the form of Exhibit A-1 hereto, evidencing Revolving Loans.



     “Revolving Loan Exposure” shall have the meaning assigned to such term in Section
2.12(b).



     “Revolving Loans” shall mean the revolving loans made by the Lenders to the Borrowers
pursuant to Section 2.02(a) of this Agreement. Such Revolving Loans shall consist of U.S. Dollar
Revolving Loans and Foreign Currency Revolving Loans. Each U.S. Dollar Revolving Loan shall be a
LIBOR Loan or an ABR Loan. Each Foreign Currency Revolving Loan shall be a LIBOR Loan.



     “Romaco Sale” shall mean one or more sales, transfers or dispositions (in one
transaction or in a series of transactions) of either (a) 100% of the stock or other equity
interests of any Subsidiary which comprises part of the Borrower’s Romaco business unit or (b) any
business unit or line of business which comprises part of the Borrower’s Romaco business unit. For
purposes of this definition, “Romaco business unit” means Borrower’s business unit engaged in the
design, manufacture and marketing of secondary processing, dosing, filling, printing and security
equipment used by the pharmaceutical, healthcare, neutraceutical and cosmetics industries.



     “SEC” shall mean the Securities and Exchange Commission, and any successor thereto.



     “Secured Parties” shall mean (a) the Lenders and the Issuing Banks, (b) the
Administrative Agent in its capacity as such under each Loan Document, (c) each Lender with which
the Borrower enters into an Interest Rate Protection Agreement pursuant to this Agreement, in its
capacity as a party to such agreement, (d) the beneficiaries of each indemnification obligation
undertaken by the Borrower or any of the Subsidiaries under any Loan Document, (e) the Noteholders
and (f) the successors and assigns of the foregoing.



     “Senior Notes” shall mean the senior secured notes of the Borrower issued pursuant to
the Senior Note Purchase Agreement.



     “Senior Note Purchase Agreement” shall mean, collectively, the separate note purchase
agreements dated May 1, 1998 pursuant to which the Borrower issued up to $100,000,000 principal
amount of the Senior Notes, together with all other documents related thereto, as amended from time
to time.



     “Shareholder” shall mean, as of any date, any person or “group” (within the meaning of
Rule 13d-3 under the Exchange Act) (a) which beneficially owns as of such date Capital Stock of the
Borrower (or of any person Controlling the Borrower) representing 5% or more of the



 









 







aggregate ordinary voting power of all the outstanding Capital Stock of the Borrower (or of
such person Controlling the Borrower) and (b) of which the Borrower has knowledge.



     “Single Employer Plan” shall mean any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.



     “Solvent” shall have the meaning assigned to such term in Section 3.19(a).



     “Standby LC” shall mean a Letter of Credit which is not a Commercial LC.



     “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board and any other domestic banking authority (and with
respect to any Non-U.S. Lender, any foreign banking authority) to which the Administrative Agent or
any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D. LIBOR Loans shall be deemed
to constitute Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets which may be available from time to time
to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.



     The term “subsidiary” shall mean, with respect to any person (referred to in this
definition as the “parent”), any corporation, partnership, association or other business entity (a)
of which Capital Stock representing more than 50% of the aggregate ordinary voting power or more
than 50% of the ownership interests is, at the time any determination is being made, owned,
Controlled or held, or (b) which is, at the time any determination is made, otherwise Controlled,
by (i) the parent, (ii) one or more subsidiaries of the parent or (iii) the parent and one or more
subsidiaries of the parent.



     “Subsidiary” shall mean the subsidiaries of the Borrower existing as of the Effective
Date and listed on Schedule 3.08 and other subsidiaries of the Borrower that are permitted
to be created or acquired hereafter pursuant to the express terms of this Agreement.



     “Subsidiary Borrower” shall mean Robbins & Myers Finance Europe B.V., a Netherlands
corporation.



     “Subsidiaries’ Consent and Agreement” shall mean the Subsidiaries’ Consent and
Agreement dated as of the Effective Date among the Domestic Subsidiaries, the Lenders and the
Administrative Agent in the form attached hereto as Exhibit B-2.



     “Supplemental Agreement” shall mean an agreement among a Subsidiary, the Collateral
Agent and the Borrower in the form attached hereto as Exhibit G, as amended from time to
time.



     “Swingline Borrowing” shall mean a Borrowing comprised of Swingline Loans.



 









 





     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.02(c) and Section 2.22, as the same may be reduced from time to time pursuant
to Section 2.10.



     “Swingline Exposure” shall mean at any time the aggregate principal amount at such
time of all outstanding Swingline Loans. The Swingline Exposure of any Lender at any time shall
equal its Applicable Percentage of the aggregate Swingline Exposure at such time.



     “Swingline Lender” shall mean JPMorgan, and its successors in such capacity.



     “Swingline Loans” shall mean any loan made by the Swingline Lender pursuant to Section
2.02(c) and 2.22.



     “Swingline Note” shall mean a promissory notes of the Borrower, substantially in the
form of Exhibit A-2 hereto, evidencing Swingline Loans.



     “TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.



     “TARGET Day” means any day on which the TARGET payment system is open for the
settlement of payments in Euros.



     “Tax Expense” shall mean, for any period for any person, the amount of expense for
Federal, state, local and other income taxes of such person and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.



     “Taxes” shall have the meaning assigned to such term in Section 2.20(a).



     “Total Debt” shall mean, without duplication, as of any date, the aggregate amount of
(a) all Revolving Loans, Letters of Credit and Swingline Loans outstanding as of such date and (b)
all other Indebtedness (other than (i) Interest Rate Protection Agreements permitted by Section
6.01(h), (ii) the obligations of Pfaudler with respect to its unfunded German pension plan and
(iii) post retirement obligations of the Borrower and the Domestic Subsidiaries) of the Borrower
and its Consolidated Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP; provided, that the amount of Total Debt outstanding at any time shall be
deemed reduced by an amount equal to the amount by which the aggregate amount of cash and Cash
Equivalents of the Borrower and its Subsidiaries at such time exceeds $10,000,000.



     “Transferee” shall have the meaning assigned to such term in Section 2.20(a).



     “Type” shall have the meaning assigned to such term in Section 1.03.



     “U.S. Dollar Borrowing” shall mean a Borrowing consisting of U.S. Dollar Revolving
Loans.



     “U.S. Dollar Revolving Loan” shall have the meaning assigned to such term in Section
2.03(a).



 









 





     “Unrestricted Subsidiary” shall mean any Subsidiary other than a Restricted
Subsidiary.



     “Voting Stock” shall have the meaning assigned to such term in the definition of
“Change of Control”.



     “Wholly Owned Subsidiary” shall mean, at any time, any Subsidiary, all of the Capital
Stock of which is at such time directly or indirectly owned by the Borrower.



     SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to
both 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”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Unless otherwise expressly provided herein, all terms of an accounting or
financial nature used herein shall be interpreted in accordance with GAAP, as in effect from time
to time; provided, that, for purposes of (a) making any calculation contemplated by
the provisions of Article II and (b) determining compliance with any covenant set forth in Article
VI, such terms shall be construed in accordance with GAAP as in effect on the date of this
Agreement applied on a basis consistent with the application used in preparing the audited
financial statements of the Borrower referred to in Section 3.05.



     SECTION 1.03. Types of Borrowings. The term “Borrowing” refers to the portion of the
aggregate principal amount of Loans of any Class outstanding hereunder which bears interest of a
specific Type and for a specific Interest Period pursuant to a notice of Borrowing pursuant to
Section 2.04. Each Lender’s ratable share of each Borrowing is referred to herein as a separate
“Loan”. Borrowings and Loans hereunder are distinguished by “Class” and “Type”. The “Class” of a
Loan or of a Commitment to make such a Loan or of a Borrowing comprising such Loans refers to
whether such Loan is a Revolving Loan or a Swingline Loan. The “Type” of a Loan refers to whether
a Revolving Loan is an ABR Loan or a LIBOR Loan. Borrowings and Loans may (but need not) be
identified both by Class and Type (e.g. a “LIBOR Revolving Loan” is a Loan which is both a
Revolving Loan and a LIBOR Loan).



ARTICLE II




THE CREDITS




     SECTION 2.01. Revolving Credit Facility. The Lenders hereby establish in favor of the
Borrowers a revolving credit facility consisting of Revolving Loans, Swingline Loans and Letters of
Credit on the terms and conditions set forth in this Agreement.



     SECTION 2.02. Commitment to Make Loans.




     (a) Subject to the terms and conditions and relying upon the representations and
warranties herein set forth, each Lender agrees, severally and not jointly, to make
Revolving Loans to the Borrowers, at any time and from time to time during the Revolving
Credit Availability Period, in an aggregate principal amount at any one time outstanding not
to exceed the excess, if any, of such Lender’s Revolving Credit



 









 







Commitment set forth opposite its name on Schedule 2.02(a) (as the same may be
reduced or increased from time to time pursuant to the terms hereof) over its Applicable
Percentage of the sum of the Dollar Amount of outstanding and unpaid Revolving Loans at such
time, plus the Dollar Amount of its Letter of Credit Exposure at such time,
plus its Swingline Exposure at such time; provided, that, (i) the
aggregate outstanding principal Dollar Amount of Foreign Currency Revolving Loans together
with the aggregate Dollar Amount of Letter of Credit Exposure in respect of Foreign Currency
Letters of Credit shall not exceed the Aggregate Foreign Currency Commitment at any time,
(ii) the aggregate principal Dollar Amount of Letter of Credit Exposure shall not exceed the
limits applicable thereto as set forth in Section 2.23, (iii) the aggregate outstanding
principal amount of Swingline Loans shall not exceed the limits set forth in Section
2.02(c), (iv) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment and (v) the aggregate outstanding principal Dollar Amount of Loans made to the
Subsidiary Borrower plus the aggregate Letter of Credit Exposure of the Lenders in respect
of Letters of Credit issued for the account of the Subsidiary Borrower shall not exceed the
Aggregate Subsidiary Borrower Commitment.




     (b) The Borrowers may borrow, pay or prepay and reborrow Revolving Loans during the
Revolving Credit Availability Period, within the limits set forth in Section 2.02(a) and
upon the other terms and subject to the other conditions and limitations set forth herein.




     (c) Subject to the terms and conditions and relying on the representations and
warranties herein set forth, the Swingline Lender agrees to make loans to the Borrower, from
time to time during the Revolving Credit Availability Period, in an aggregate principal
amount at any one time outstanding not to exceed the lesser of (i) $20,000,000 and (ii) the
excess, if any, of the Aggregate Commitment at such time over the Aggregate Outstanding
Credit Exposure at such time. Each Swingline Loan shall be in a principal amount that is an
integral multiple of $100,000.



     SECTION 2.03. Loans.




     (a) Each Loan (other than Swingline Loans) shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their respective
Revolving Credit Commitments based on their Applicable Percentage; provided,
that, the failure of any Lender to make any Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Subject to the terms and conditions contained herein, funds
advanced by the Lenders pursuant to any Revolving Loan may be in U.S. dollars (a “U.S.
Dollar Revolving Loan”) or a Foreign Currency (a “Foreign Currency Revolving
Loan”). The Loans comprising any Borrowing made in U.S. Dollars (other than a Borrowing
comprised of Swingline Loans) shall be in an aggregate principal amount which is (i) an
integral multiple of $100,000 and not less than $500,000 in the case of LIBOR Loans (or such
other amounts as agreed to by the Administrative Agent in its sole discretion) and (ii) an
integral multiple of $100,000 in the case of ABR Loans (or such other amounts as agreed to
by the Administrative Agent in its sole discretion). Each



 









 







Borrowing consisting of Foreign Currency Revolving Loans shall be in a minimum
aggregate principal Dollar Amount equal to the applicable Foreign Currency Equivalent of
approximately $500,000 and integral multiples of the applicable Foreign Currency Equivalent
of approximately $100,000 in excess thereof (or such other amounts as agreed to by the
Administrative Agent in its sole discretion). At no time shall the aggregate outstanding
principal Dollar Amount of Foreign Currency Revolving Loans and Foreign Currency Letters of
Credit exceed the Aggregate Foreign Currency Commitment.




     (b) A particular Borrowing (other than a Borrowing comprised of Swingline Loans) shall
consist solely of ABR Loans or LIBOR Loans as the Borrower may request pursuant to Section
2.04; provided, that, if an Event of Default or Default shall have occurred
and be continuing (i) the Borrower shall not be entitled to request any LIBOR Loans and (ii)
no Loans of any Type shall be made unless such Event of Default or Default shall have been
waived in accordance with Section 9.08(b); provided, that, the
Administrative Agent shall not be deemed liable to the Lenders for disbursing Loan proceeds
received from a Lender if the Administrative Agent had no knowledge of the existence of a
Default or Event of Default. Each Lender may at its option fulfill its Commitment with
respect to any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, that, any exercise of such option shall
not affect the obligation of the Borrowers to repay such Loan in accordance with the terms
of this Agreement and any applicable Note. Borrowings of more than one Type and LIBOR Loans
bearing interest for more than one specific Interest Period may be outstanding at the same
time; provided, that, the Borrower shall not be entitled to request any
Borrowing or any continuation or conversion thereof which, if made, would result in an
aggregate of more than ten separate LIBOR Loans of any Lender being outstanding hereunder at
any one time. For purposes of the foregoing, Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered separate Loans.




     (c) All Swingline Loans shall be ABR Loans. No Swingline Loan shall be a LIBOR Loan.




     (d) (i) Subject to Section 2.03(h), each Lender shall make each U.S. Dollar Revolving
Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in the Applicable Office, not later than 4:00
p.m., Applicable Time, and the Administrative Agent shall by 6:00 p.m., Applicable Time,
credit or wire transfer the amounts so received to an account in the name of the applicable
Borrower maintained with the Administrative Agent or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders.




     (ii) Subject to Section 2.03(h), each Lender shall make each Foreign Currency
Revolving Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to the Administrative Agent by 1:00 p.m.,
Applicable Time, in the place where such deposit is required to be made pursuant to
Section 2.19, for payments by the Borrowers, of same day funds in the applicable
Foreign Currency. Such deposit will be made to such



 









 







accounts in the primary market for such Foreign Currencies as the
Administrative Agent shall specify from time to time by notice to the Lenders. To
the extent funds are received from the Lenders, the Administrative Agent shall
promptly make such funds available by wire transfer to such accounts as the Borrower
shall have specified to the Administrative Agent. If Foreign Currency Revolving
Loans shall not occur on such date because any condition precedent herein specified
shall not have been met, the Administrative Agent shall return the amounts received
from Lenders in accordance with this paragraph to the respective Lenders.




     (e) If the Administrative Agent has not received from the applicable Borrower the
payment required by Section 2.23(g) by 2:00 p.m., Eastern Standard Time, on the date of
notice from the Issuing Bank that payment of a draft presented under any Letter of Credit
has been or will be made, as provided in Section 2.23(g), the Administrative Agent will
promptly notify the Issuing Bank and each Lender of the Letter of Credit Disbursement and
the currency in which such disbursement is denominated and, in the case of each Lender, its
pro rata portion of such Letter of Credit Disbursement. Not later than 2:00 p.m., Eastern
Standard Time, on the next Business Day, each Lender shall make available its pro rata share
(based on such Lender’s Applicable Percentage) of such Letter of Credit Disbursement in the
currency of such disbursement, in funds immediately available to the Administrative Agent at
its Applicable Office, and the Administrative Agent will promptly make such funds available
to the Issuing Bank. The Administrative Agent will promptly remit to each Lender that shall
have made such funds available its pro rata portion (based on such Lender’s Applicable
Percentage) of any amounts subsequently received by the Administrative Agent from the
applicable Borrower in respect of such Letter of Credit Disbursement in the currency in
which it was received.




     (f) Unless the Administrative Agent shall have received notice from a Lender prior to
the date of any Borrowing, or prior to the time of any required payment by any Lender in
respect of a Letter of Credit Disbursement, that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing or payment, the Administrative
Agent may assume that such Lender has made such portion available to the Administrative
Agent on the date of such Borrowing or payment in accordance with Section 2.03(a), and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrowers
or the Issuing Bank, as the case may be, on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the Administrative
Agent, such Lender and the Borrowers severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrowers or the Issuing Bank (or, if the
Administrative Agent and the Issuing Bank are the same person, from the date of such payment
in respect of a Letter of Credit Disbursement), as applicable, until the date such amount is
repaid to the Administrative Agent at, (i) in the case of the Borrowers, the interest rate
applicable thereto pursuant to Section 2.07 or 2.23(g), as applicable, and (ii) in the case
of such Lender, the Federal Funds Effective Rate in the case of amounts payable in dollars
and at a corresponding rate reasonably determined by the



 









 







Administrative Agent in the case of amounts payable in other currencies. If such
Lender shall repay to the Administrative Agent such corresponding amount in respect of a
Borrowing, such amount shall constitute such Lender’s Loan as part of such Borrowing for
purposes of this Agreement.




     (g) Notwithstanding any other provision of this Agreement, the Borrowers shall not be
entitled to request any Eurodollar Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Credit Maturity Date. Any Revolving Credit Borrowing
which cannot be refinanced as a Eurodollar Borrowing by reason of the preceding sentence
shall be automatically converted at the end of the Interest Period in effect for such
Borrowing into an ABR Borrowing.




     (h) The Borrowers may refinance all or any part of any Revolving Credit Borrowing with
a Revolving Credit Borrowing of the same or a different Type, upon the terms and subject to
the conditions and limitations set forth in this Agreement. Any Revolving Credit Borrowing
or part thereof so refinanced shall be deemed for all purposes to be simultaneously repaid
or prepaid in accordance with Section 2.05 or 2.13, as applicable, with the proceeds of a
new Revolving Credit Borrowing and the proceeds of such new Revolving Credit Borrowing (to
the extent they do not exceed the principal amount of the Borrowing being refinanced) shall
not be paid by the Lenders to the Administrative Agent or by the Administrative Agent to the
Borrowers pursuant to Section 2.03(d).



     SECTION 2.04. Notice of Borrowings.




     (a) U.S. Dollar Borrowings. In order to request a Borrowing (other than a
Swingline Loan) consisting of U.S. Dollar Revolving Loans, a Borrower shall give the
Administrative Agent written or telecopy notice (or telephone notice promptly confirmed in
writing or by telecopy) at the Applicable Office (a) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, Applicable Time, three Business Days before a proposed Borrowing
and (b) in the case of an ABR Borrowing, not later than 12:00 noon, Applicable Time, on the
Business Day of a proposed Borrowing. Any such notice of Borrowing shall be irrevocable,
shall be substantially in the form of Exhibit H-1 hereto and shall in each case
refer to this Agreement and specify (i) whether the Borrowing then being requested is to be
a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be
a Business Day) and the amount thereof; and (iii) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is specified in
any such notice, then such Borrower shall be deemed to have selected an Interest Period of
one month’s duration. If such Borrower shall not have given notice in accordance with this
Section 2.04(a) of its election to refinance a Revolving Credit Borrowing prior to the end
of the Interest Period in effect for such Borrowing, then such Borrower shall (unless such
Borrowing is repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing. The Administrative Agent shall
promptly, but no later than 2:00 p.m., Applicable Time, on the day it receives a notice
hereunder from a



 









 







Borrower, advise the applicable Lenders of any notice given pursuant to this Section
2.04(a) and of each Lender’s portion of the requested Borrowing.




     (b) Foreign Currency Borrowings. In order to request a Borrowing consisting of
Foreign Currency Revolving Loans, a Borrower shall give the Administrative Agent written or
telecopy notice (or telephone notice promptly confirmed in writing or by telecopy) at the
Applicable Office, not later than 12:00 noon, Applicable Time, five Business Days before a
proposed Borrowing. Any such notice of Borrowing shall be irrevocable and shall be
substantially in the form of Exhibit H-2 hereto and shall in each case refer to this
Agreement and specify (i) that a Borrowing consisting of Foreign Currency Revolving Loans is
requested, (ii) the date of the requested Borrowing (which shall be a Business Day), (iii)
the requested Foreign Currency, (iv) the aggregate principal amount requested to be borrowed
and (v) the Interest Period(s) therefor. If such Borrower shall fail to specify in any such
notice of Borrowing an applicable Interest Period, then such notice shall be deemed to be a
request for an Interest Period of one month. The Administrative Agent shall give notice to
each Lender promptly upon receipt of each such Notice of Borrowing pursuant to this Section
2.04(b), the contents thereof and the amount equal to each such Lender’s Revolving Credit
Commitment of the Borrowing to be made pursuant thereto.



     SECTION 2.05. Noteless Agreement; Repayment of Loans.




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




     (b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the applicable currency and Type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrowers to each Lender hereunder, (iii) the
original stated amount of each Letter of Credit and (iv) the amount of Letter of Credit
Exposure outstanding at any time, and the amount of any sum received by the Administrative
Agent hereunder from the Borrowers and each Lender’s share thereof.




     (c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and
(b) above shall be prima facie evidence of the existence and amounts of the Obligations
therein recorded; provided, that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the obligation of
the Borrowers to repay the Obligations in accordance with their terms.




     (d) Any Lender may request that its Loans be evidenced by a Revolving Credit Note. In
such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable
to the order of such Lender in the form of Exhibit A-1 hereto. Thereafter, the Loans
evidenced by such Revolving Credit Note and interest thereon shall at all times (including
after any assignment pursuant to Section 9.04) be represented by



 









 







one or more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 9.04, except to the extent that any such Lender or assignee subsequently
returns any such Note for cancellation and requests that such Loans once again be evidenced
as described in paragraphs (a) and (b) above.




     (e) The Swingline Loans made by the Swingline Lender shall, if so requested by the
Swingline Lender, be evidenced by a Swingline Note, duly executed and delivered on behalf of
the Borrower, substantially in the form attached hereto as Exhibit A-2, with the blanks
appropriately filled, payable to the order of the Swingline Lender in a principal amount
equal to the Swingline Commitment. The Swingline Lender shall, and is hereby authorized by
the Borrower to, endorse on the schedule attached to the Swingline Note (or on a
continuation of such schedule attached to the Swingline Note and made a part thereof), or
otherwise to record in the Swingline Lender’s internal records, an appropriate notation
evidencing the date and amount of each applicable Swingline Loan from the Swingline Lender,
each payment and prepayment of principal of any Swingline Loan, each payment of interest on
any such Loan and the other information provided for on such schedule; provided,
that, the failure of the Swingline Lender to make such a notation or any error
therein shall not affect the obligation of the Borrower to repay the Swingline Loans made by
the Swingline Lender in accordance with the terms of this Agreement and the Swingline Note.




     (f) The outstanding principal balance of each Revolving Loan shall be payable on the
last day of the Interest Period applicable to such Revolving Loan and on the Revolving
Credit Maturity Date and shall bear interest as set forth in Section 2.07. All principal
of, and interest on, all Loans shall be paid or repaid, as the case may be, in the
applicable currency in which such Loan was made.




     (g) The outstanding principal balance of each Swingline Loan shall be payable on the
last day of the Interest Period applicable to such Swingline Loan and on the Revolving
Credit Maturity Date and shall bear interest as set forth in Section 2.07.



     SECTION 2.06. Fees.




     (a) The Borrower shall pay to the Administrative Agent for the account of each Lender,
on the last day of March, June, September and December in each year and on the date on which
the Revolving Credit Commitment of such Lender shall expire or be terminated as provided
herein, a facility fee (a “Facility Fee”) at a per annum rate equal to the
Applicable Facility Fee Rate on the total Revolving Credit Commitment (as the same may be
reduced from time to time pursuant to Section 2.10) of such Lender during the preceding
quarter (or shorter period commencing with the Effective Date or ending with the date on
which the Revolving Credit Commitment of such Lender shall be terminated); provided,
that, if such Lender continues to have any Revolving Loan Exposure after its
Commitment terminates, then such Facility Fee shall continue to accrue on the daily amount
of such Lender’s Revolving Loan Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any Revolving Loan
Exposure. All Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fees due to each



 









 







Lender shall commence to accrue on the Effective Date and cease to accrue on the date
on which the Revolving Credit Commitment of such Lender shall be terminated as provided
herein.




     (b) The Borrower shall pay to the Administrative Agent (i) for the account of each
Lender, in arrears on the last day of March, June, September and December of each year and
on the date on which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein, a letter of credit fee (a “Letter of Credit Fee”)
equal to (A) such Lender’s Applicable Percentage of the Dollar Amount of the average daily
undrawn stated amount of each Letter of Credit (such Dollar Amount for any given day, in the
case of Foreign Currency Letters of Credit, to be determined by reference to the exchange
rate most recently used by the Administrative Agent in determining the Dollar Amount of such
Letter of Credit) multiplied by (B) a per annum rate equal to the Applicable LC Fee Rate in
effect from time to time during such period, and (ii) with regard to all Letters of Credit,
for the account of the applicable Issuing Bank, in arrears on the last day of March, June,
September and December of each year, a fronting fee (the “Fronting Fee”) of 0.125%
per annum on the Dollar Amount of the average daily undrawn stated amount of each Letter of
Credit (such Dollar Amount for any given day, in the case of Foreign Currency Letters of
Credit, to be determined by reference to the exchange rate most recently used by the
Administrative Agent in determining the Dollar Amount of such Letter of Credit) and any
other customary fees of the applicable Issuing Bank charged in connection with the issuance,
amendment or transfer of any Letter of Credit or any Letter of Credit Disbursement by such
Issuing Bank. All Letter of Credit Fees and Fronting Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days.




     (c) The Borrower agrees to pay to the Administrative Agent, for its own account, the
fees set forth in the Fee Letter dated November 6, 2006 among the Arranger, the
Administrative Agent and the Borrower and in the applicable provisions of the Commitment
Letter dated such date among such parties (together, the “Fee Letter”) in the
amounts and on the dates provided in the Fee Letter. Such fees shall be in addition to
reimbursement of the Administrative Agent’s reasonable out-of-pocket expenses.




     (d) All Fees shall be paid on the dates due immediately available funds. Once paid,
none of the Fees shall be refundable under any circumstances (absent manifest error).



     SECTION 2.07. Interest on Loans.




     (a) Subject to the provisions of Section 2.08, each Revolving Loan and each Swingline
Loan comprising an ABR Borrowing shall bear interest for each day from the date such Loan is
made until it is paid in full (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be when determined by reference to the Prime
Rate) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin. So
long as any ABR Borrowing is outstanding, the Administrative Agent shall promptly notify the
Borrower of any change in the Prime Rate.



 









 






     (b) Subject to the provisions of Section 2.08, each Revolving Loan comprising a
Eurodollar Borrowing shall bear interest for each day from the date such Loan is made until
it is paid in full (computed on the basis of the actual number of days elapsed over a year
of 360 days, except for interest on Loans denominated in British pounds sterling which shall
be calculated for actual days elapsed on the basis of a 365 day year or otherwise in
accordance with relevant market practice) at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing, plus the Applicable LIBOR Margin
in effect from time to time for such Class of Loan.




     (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to
such Loan, except as otherwise provided in this Agreement. The applicable Alternate Base
Rate or Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the
case may be, shall be determined by the Administrative Agent in good faith, and such
determination shall be conclusive absent manifest error.



     SECTION 2.08. Default Interest. If and for so long as any Event of Default shall have
occurred and be continuing, interest shall accrue, to the extent permitted by applicable law, on
the outstanding amount of all Obligations during the period from (and including) the date of such
Event of Default to (but not including) the date of actual payment (after as well as before
judgment) at (a) in the case of principal of or interest on any Loan, the rate per annum (computed
on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate and over a year of 360 days at all other times)
applicable to such Loan during such period pursuant to Section 2.07, plus 2.00% or (b) in the case
of any other amount, a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) equal to the rate applicable to ABR Loans during
such period pursuant to Section 2.07, plus 2.00%. The Borrowers shall pay all such accrued but
unpaid interest from time to time upon demand.



     SECTION 2.09. Alternate Rate of Interest. In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have reasonably determined that deposits in the principal
amounts in the relevant currency of the Loans comprising such Borrowing are not generally available
in the applicable interbank market, or that the rates at which such deposits are being offered will
not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans
during such Interest Period, or that reasonable means do not exist for ascertaining the Adjusted
LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.04 or
2.11 shall, until the Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.



 









 





     SECTION 2.10. Termination and Reduction of Commitments; Increase of Commitments.




     (a) The Revolving Credit Commitments and the Swingline Commitment shall be
automatically terminated at 5:00 p.m., Eastern Standard Time, on the Revolving Credit
Maturity Date.




     (b) Upon at least three Business Days’ prior irrevocable written or telecopy notice to
the Administrative Agent, the Borrower may at any time in whole permanently terminate, or in
part permanently reduce, the Revolving Credit Commitments; provided, that,
(i) each partial reduction of the Revolving Credit Commitments shall be in a minimum
aggregate principal amount which is an integral multiple of $1,000,000, and (ii) the
aggregate of Revolving Credit Commitments shall not be reduced to an amount that is less
than the Dollar Amount of all aggregate Letter of Credit Exposure at that time and (iii) the
foregoing notice is waived with respect to the reduction in Revolving Credit Commitments
being accomplished by this Agreement.




     (c) Each reduction in the Revolving Credit Commitments shall be made ratably among the
Lenders in accordance with their respective Revolving Credit Commitments and each such
reduction shall proportionately reduce the Swingline Commitment. The Borrower shall pay to
the Administrative Agent for the account of the Lenders, on the date of each termination or
reduction of the Revolving Credit Commitments, the Facility Fees on the amount of the
Revolving Credit Commitments so terminated or reduced accrued to the date of such
termination or reduction.




     (d) The Borrower may, at its option, on up to four occasions, seek to increase the
Aggregate Commitment by up to $100,000,000 in the aggregate (resulting in a maximum
Aggregate Commitment of $250,000,000) upon at least three (3) Business Days’ prior written
notice to the Administrative Agent, which notice shall specify the amount of any such
increase, shall be delivered at a time when no Default or Event of Default has occurred and
is continuing and may not be delivered if the Borrower has previously terminated a portion
of the Revolving Credit Commitment pursuant to Section 2.10(b) hereof. The Borrower may,
after giving such notice, offer the increase (which may be declined by any Lender in its
sole discretion) in the Aggregate Commitment on either a ratable basis to the Lenders or on
a non pro-rata basis to one or more Lenders and/or to other lenders or entities reasonably
acceptable to the Administrative Agent. No increase in the Aggregate Commitment shall
become effective until the existing or new Lenders extending incremental Revolving Credit
Commitment amounts and the Borrower shall have delivered to the Administrative Agent a
document in form reasonably satisfactory to the Administrative Agent pursuant to which any
such existing Lender states the amount of its Revolving Credit Commitment increase, any such
new Lender states its Revolving Credit Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder and the Borrower accepts such incremental
Revolving Credit Commitments. The Lenders (new or existing) shall accept an assignment from
the existing Lenders, and the existing Lenders shall make an assignment to the new or
existing Lender accepting a new or increased Revolving Credit Commitment, of an interest in
the then outstanding extensions of credit hereunder such that, after giving effect thereto,
all credit exposure hereunder (other than Swingline Loans



 









 







as to which no participation notice pursuant to Section 2.22(c) has been delivered) is
held (directly or indirectly) ratably by the Lenders in proportion to their respective
Revolving Credit Commitments. Assignments pursuant to the preceding sentence shall be made
in exchange for the principal amount assigned plus accrued and unpaid interest and Facility
Fees and Letter of Credit Fees. The Borrower shall make any payments under Section 2.16
resulting from such assignments. Any such increase of the Aggregate Commitment shall be
subject to receipt by the Administrative Agent from the Borrower of such supplemental
opinions, resolutions, certificates and other documents as the Administrative Agent may
reasonably request.



     SECTION 2.11. Conversion and Continuation Options. Except with respect to Borrowings
comprised of Swingline Loans, as to which this Section 2.11 shall not apply, a Borrower shall have
the right at any time upon prior irrevocable notice to the Administrative Agent at the Applicable
Office (a) not later than 12:00 noon, Applicable Time, on the day of conversion, to convert any
Eurodollar Borrowing (other than a Foreign Currency Revolving Loan) into an ABR Borrowing, (b) not
later than 12:00 noon, Applicable Time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing
(other than a Foreign Currency Revolving Loan) as a Eurodollar Borrowing for an additional Interest
Period, (c) not later than 12:00 noon, Applicable Time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing (other than a Foreign Currency
Revolving Loan) to another permissible Interest Period, (d) not later than 12:00 noon, Applicable
Time, five Business Days prior to conversion or continuation, to convert the Interest Period with
respect to any Foreign Currency Revolving Loan to another permissible Interest Period or to
continue any Foreign Currency Revolving Loan as a Foreign Currency Revolving Loan for an additional
Interest Period, subject in each case to the following:




     (i) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the
converted or continued Borrowing;




     (ii) the aggregate principal amount of such Borrowing converted into or
continued as (A) a Eurodollar Borrowing in dollars, shall be an integral multiple of
$100,000 and not less than $500,000, (B) a Eurodollar Borrowing in a Foreign
Currency shall be an integral multiple of the applicable Foreign Currency Equivalent
of approximately $100,000 and not less than the applicable Foreign Currency
Equivalent of approximately $500,000, or (C) an, ABR Borrowing, shall be the lesser
of (I) the remaining outstanding principal amount of such Borrowing and (II) an
integral multiple of $100,000;




     (iii) each conversion or continuation shall be effected by each Lender by
applying the proceeds of the new Loan of such Lender resulting from such conversion
or continuation to the Loan (or portion thereof) of such Lender being converted or
continued;




     (iv) accrued interest on a LIBOR Loan (or portion thereof) being converted or
continued shall be paid by the Borrowers at the time of conversion;



 









 






     (v) if any Eurodollar Borrowing is converted or continued at a time other than
the end of the Interest Period applicable thereto, the Borrowers shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.16;




     (vi) any portion of a Borrowing maturing or required to be repaid in less than
one month may not be converted into or continued as a Eurodollar Borrowing;




     (vii) any portion of a Eurodollar Borrowing (other than a Eurodollar Borrowing
in a Foreign Currency) which cannot be converted into or continued as a Eurodollar
Borrowing by reason of clause (vi) above shall be automatically converted at the end
of the Interest Period in effect for such Borrowing into an ABR Borrowing;




     (viii) Foreign Currency Revolving Loans may not be converted into ABR Loans
pursuant to this Section 2.11; and




     (ix) Foreign Currency Revolving Loans in a particular Foreign Currency may not
be converted into or continued as Foreign Currency Revolving Loans of any other
Foreign Currency pursuant this Section 2.11.



     Each notice pursuant to this Section 2.11 shall be irrevocable, shall be in substantially the
form of Exhibit H-1 hereto or, if the request involves a Foreign Currency Revolving Loan,
Exhibit H-2 hereto, and shall in each case refer to this Agreement and specify (I) the
principal amount, the Class, the Type and, in the case of a Eurodollar Borrowing, the Interest
Period of the Borrowing that the Borrower requests be converted or continued, (II) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (III)
if such notice requests a conversion, the date of such conversion (which shall be a Business Day)
and (IV) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrowers shall be
deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall
advise the other Lenders of any notice given pursuant to this Section 2.11 and of each Lender’s
portion of any converted or continued Borrowing. If the Borrower shall not have given notice in
accordance with this Section 2.11 to continue any Borrowing into a subsequent Interest Period (and
shall not otherwise have given notice in accordance with this Section 2.11 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new Interest Period as an
ABR Borrowing, unless such Borrowing is a Foreign Currency Borrowing, in which case such Borrowing
shall be automatically continued as a Foreign Currency Borrowing in the same Foreign Currency for
an Interest Period of one month.



     SECTION 2.12. Mandatory Repayments and Prepayments.




     (a) On the Revolving Credit Maturity Date, all Revolving Credit Borrowings and all
Swingline Borrowings shall be due and payable to the extent not previously paid



 









 







and all Letter of Credit Exposure (if any) shall be terminated or cash collateralized
in a manner satisfactory to the Administrative Agent.




     (b) In the event and on each occasion that the sum of (i) the aggregate outstanding
principal Dollar Amount of Revolving Loans, (ii) the aggregate Dollar Amount of all Letter
of Credit Exposure, and (iii) the aggregate Swingline Exposure (collectively, the
“Revolving Loan Exposure”) exceeds the Aggregate Commitment (or the Aggregate
Subsidiary Borrower Commitment with respect to all Loans made to, and Letter of Credit
Exposure of, the Subsidiary Borrower) at such time, the Borrowers shall immediately prepay
Revolving Loans such that the aggregate Dollar Amount of all Revolving Loan Exposure is
equal to or less than the Aggregate Commitment (or the Aggregate Subsidiary Borrower
Commitment with respect to all Loans made to, and Letter of Credit Exposure of, the
Subsidiary Borrower). In addition, on the last day of each calendar month, or on any other
Determination Date, the Borrowers shall pay or prepay outstanding Foreign Currency Revolving
Loans to the extent, if necessary, so that (i) the Dollar Amount (determined as of such
date) of all aggregate Revolving Loan Exposure is equal to or less than the Aggregate
Commitment (or the Aggregate Subsidiary Borrower Commitment with respect to all Loans made
to, and Letter of Credit Exposure of, the Subsidiary Borrower) at that time and (ii) the
Dollar Amount of the aggregate outstanding principal amount of such Foreign Currency
Revolving Loans together with the Dollar Amount of the outstanding Letter of Credit Exposure
in respect of Foreign Currency Letters of Credit shall not exceed the Aggregate Foreign
Currency Commitment (including with respect to all Loans made to, and Letter of Credit
Exposure of, the Subsidiary Borrower). In the event that on the last day of any calendar
month or on any other Determination Date, the Dollar Amount of the aggregate Letter of
Credit Exposure resulting from Letters of Credit issued in dollars and Foreign Currency
Letters of Credit exceeds the Aggregate Commitment (or the Aggregate Subsidiary Borrower
Commitment with respect to all Loans made to, and Letter of Credit Exposure of, the
Subsidiary Borrower), then the Borrower shall cash collateralize such Letter of Credit
Exposure (in each instance, in dollars or in a Foreign Currency reasonably required by the
Administrative Agent) to the extent, if necessary, so that (i) the Dollar Amount (determined
as of such date) of all aggregate Revolving Loan Exposure is equal to or less than the
Aggregate Commitment (or the Aggregate Subsidiary Borrower Commitment with respect to all
Loans made to, and Letter of Credit Exposure of, the Subsidiary Borrower) at that time and
(ii) the Dollar Amount (determined as of such date) of all aggregate Letter of Credit
Exposure resulting from Letters of Credit issued in dollars and Foreign Currency Letters of
Credit is equal to or less than the Aggregate Commitment (or the Aggregate Subsidiary
Borrower Commitment with respect to all Loans made to, and Letter of Credit Exposure of, the
Subsidiary Borrower) (and thereupon such cash shall be deemed to reduce the Letter of Credit
Exposure for purposes of this Section 2.12(b)).




     (c) All mandatory prepayments under Section 2.12(b) shall be applied (to the extent
applicable) (i) first, to reduce the outstanding principal amount of U.S. Dollar
Revolving Loans or Foreign Currency Revolving Loans, as the case may be, and (ii)
second, to the extent that the remaining amount of such prepayment is greater than
the aggregate principal Dollar Amount of outstanding Loans, to provide cash collateral in an
amount equal to all such Letter of Credit Exposure (the amount to be deposited shall be



 









 







denominated in the currency or currencies of the Letter(s) of Credit then outstanding)
(and thereupon such cash shall be deemed to reduce the Letter of Credit Exposure for
purposes of this Section 2.12(c)). Subject to the foregoing provisions, any mandatory
prepayment of Loans of any Class pursuant to Section 2.12(b) shall be applied to prepay all
ABR Loans of such Class before any LIBOR Loans of such Class are prepaid. All mandatory
prepayments shall be applied first to Loans in the currency in which payment is made by the
Borrowers.




     (d) Each payment of Borrowings pursuant to this Section 2.12 (except partial
prepayments of ABR Borrowings) shall be accompanied by accrued interest on the principal
amount paid to but excluding the date of payment. All payments under this Section 2.12
shall be subject to Section 2.16, but otherwise shall be without premium or penalty.



     SECTION 2.13. Optional Prepayments.




     (a) Subject to Section 2.13(b), the Borrowers shall have the right at any time and from
time to time to prepay any LIBOR Loans, in whole or in part, upon giving prior written or
telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to
the Administrative Agent, at least three Business Days prior to the date of prepayment;
provided, that each partial prepayment of LIBOR Loans shall be in a Dollar
Amount which is an integral multiple of $100,000 and not less than $500,000 (or such other
amounts as agreed to by the Administrative Agent in its sole discretion) and a partial
prepayment of a Eurodollar Borrowing under this Section 2.13(a) shall not be made that would
result in the remaining aggregate outstanding principal Dollar Amount thereof being less
than $100,000. Each notice of prepayment shall specify the prepayment date, the Class, the
Type, the Interest Period of the Borrowing to be prepaid and the principal amount thereof to
be prepaid, shall be irrevocable and shall commit the Borrowers to prepay such Borrowing by
the amount stated therein on the date stated therein.




     (b) All prepayments under this Section 2.13 shall be subject to Section 2.16 but
otherwise shall be without premium or penalty. All prepayments under this Section 2.13
shall be accompanied by accrued interest on the principal amount being prepaid to, but
excluding, the date of payment.



     SECTION 2.14. Reserve Requirements; Change in Circumstances.




     (a) Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) shall change the basis of
taxation of payments to any Lender or Issuing Bank of the principal of or interest on any
LIBOR Loan made by such Lender or any Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank
by the jurisdiction in which such Lender or Issuing Bank has its principal office or by any
state of the United States or by any political subdivision or taxing



 









 







authority therein), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or Issuing Bank (except any such reserve requirement that is
reflected in the Adjusted LIBO Rate) or shall impose on such Lender or Issuing Bank or the
applicable interbank market any other condition affecting this Agreement or LIBOR Loans made
by such Lender or any Letter of Credit or participation therein, and the result of any of
the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or
maintaining any LIBOR Loan or increase the cost to any Lender of issuing or maintaining any
Letter of Credit or purchasing or maintaining a participation therein or to reduce the
amount of any sum received or receivable by such Lender (or Affiliate or parent thereof
which fairly allocates any such increase to the Lender) or Issuing Bank hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender or Issuing Bank to
be material, then the Borrower will pay to such Lender or Issuing Bank, as the case may be,
upon demand such additional amount or amounts as will compensate such Lender or Issuing
Bank, as the case may be, for such additional costs actually incurred or reduction suffered.




     (b) If any Lender or Issuing Bank shall have determined that the adoption after the
date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy,
or any change after the date hereof in any such law, rule, regulation, agreement or
guideline or in the interpretation or administration thereof by any Governmental Authority
(including the National Association of Insurance Commissioners) charged with the
interpretation or administration thereof, or compliance by any Lender (or any lending office
of such Lender) or Issuing Bank or any Lender’s or the Issuing Bank’s holding company with
any request or directive regarding capital adequacy (whether or not having the force of law)
of any Governmental Authority has or would have the effect of reducing the rate of return on
such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s
holding company, if any, as a consequence of this Agreement or the Loans made or
participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters
of Credit issued by Issuing Bank pursuant hereto to a level below that which such Lender or
Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for
such applicability, adoption, change or compliance (taking into consideration such Lender’s
or the Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding
company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank
to be material, then, from time to time the Borrower shall pay to such Lender or Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender
or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction
suffered.




     (c) A certificate of a Lender or Issuing Bank setting forth the circumstances requiring
the payment of compensation, the calculations with respect thereto, and the amount or
amounts necessary to compensate such Lender or Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender or
Issuing Bank the amount shown as due on any such certificate delivered by it within 10 days
after its receipt of the same.



 









 






     (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation
for any increased costs or reduction in amounts received or receivable or reduction in
return on capital shall not constitute a waiver of such Lender’s or Issuing Bank’s right to
demand such compensation. The protection of this Section 2.14 shall be available to each
Lender and Issuing Bank regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other change or
condition that shall have occurred or been imposed. In the event any Lender or Issuing Bank
ever receives a refund from any applicable Governmental Authority of any amount paid by the
Borrower on account of the provisions of this Section 2.14, the applicable lender or Issuing
Bank, as the case may be, shall repay those refunded amounts to the Borrower.



     SECTION 2.15. Change in Legality.




     (a) Notwithstanding any other provision of this Agreement, if after the date hereof,
(i) any change in any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any LIBOR Loan or to give effect to its obligations as
contemplated hereby with respect to any LIBOR Loan, or (ii) there shall have occurred any
change in national or international financial, political or economic conditions, other than
those arising under Section 2.14, (including the imposition of or any change in exchange
controls) or currency exchange rates which would make it impracticable for any Lender to
make Loans denominated in any Foreign Currency to the Borrowers, as contemplated by this
Agreement, then, by written notice to the Borrower and to the Administrative Agent, such
Lender may:




     (A) declare that LIBOR Loans or Foreign Currency Revolving Loans (in the
affected Foreign Currency) will not thereafter (for the duration of such
unlawfulness) be made by such Lender hereunder (or be continued for additional
Interest Periods and ABR Loans will not thereafter (for such duration) be converted
into LIBOR Loans), whereupon any request for a LIBOR Loan (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an
additional Interest Period) shall, as to such Lender only, (I) if such Loan is a
U.S. Dollar Revolving Loan, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional Interest Period or to convert a LIBOR
Loan into an ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn, or (II) if such Loan is a Foreign Currency Revolving Loan,
be deemed to have been withdrawn, unless such declaration shall be subsequently
withdrawn; and




     (B) require that all outstanding LIBOR Loans or Foreign Currency Revolving
Loans (in the affected Foreign Currency) as the case may be, made by it be (I) if
such Loans are U.S. Dollar Revolving Loans, converted to ABR Loans, in which event
all such LIBOR Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in paragraph (b) below or (II) if such
Loans are Foreign Currency Revolving Loans, repaid immediately, in which event all
such Foreign Currency Revolving Loans (in the affected Foreign



 









 







Currency) shall be required to be repaid in full by the Borrowers as of the
effective date of such notice as provided in paragraph (b) below.




In the event any Lender shall exercise its rights under (i) or (ii) above with respect to
any U.S. Dollar Revolving Loans, all payments and prepayments of principal that would
otherwise have been applied to repay the LIBOR Loans that would have been made by such
Lender or the converted LIBOR Loans of such Lender shall instead be applied to repay the ABR
Loans made by such Lender in lieu of, or resulting from the conversion of, such LIBOR Loans.




     (b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each LIBOR Loan made by such Lender, if lawful, on the last day of the
Interest Period currently applicable to such LIBOR Loan or, if there are then two or more
current Interest Periods, on the last day of each such Interest Period, respectively;
otherwise, such notice shall be effective on the date of receipt by the Borrower.



     SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss or
expense that such Lender may sustain or incur as a consequence of (a) any event, other than a
default by the Administrative Agent or such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any amount on account of the
principal of any LIBOR Loan prior to the end of the Interest Period in effect therefor, (ii) the
conversion of any LIBOR Loan to a Loan of another Type, or the conversion of the Interest Period
with respect to any LIBOR Loan, in each case other than on the last day of the Interest Period in
effect therefor, (iii) any LIBOR Loan to be made by such Lender (including any LIBOR Loan to be
made pursuant to a conversion or continuation under Section 2.11) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events referred to in this
clause (a) being called a “Breakage Event”) or (b) any default by the Borrowers in the
making of any payment or prepayment required to be made hereunder. In the case of any Breakage
Event, such loss shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the LIBOR Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to
be realized by such Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period. Determination of amounts payable under this Section with respect
to LIBOR Loans shall be calculated as though each Lender funded its LIBOR Loan through the purchase
of a deposit of the type and maturity corresponding to the deposit used as a reference in
determining the LIBO Rate applicable to such Loan, whether in fact that is the case or not. A
certificate of any Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section 2.16 shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such
certificate delivered by it within 10 days after receipt of the same.



     SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15 and as
provided in this Section 2.17 with respect to Swingline Loans, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of
the Facility Fees, each reduction of the Revolving Credit Commitments and each refinancing



 









 







of any Borrowing with, conversion of any Borrowing to, or continuation of any Borrowing as, a
Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their
respective applicable Commitments (or, if such Commitments shall have expired or been terminated,
in accordance with the sum of (a) the respective principal amounts of their applicable outstanding
Loans and (b) the respective amounts of their Letter of Credit Exposure). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any time, each outstanding
Swingline Loan shall be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including, those Lenders which shall not have made Swingline Loans) pro rata in accordance with
such respective Revolving Credit Commitments. Each Lender agrees that in computing such Lender’s
portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.



     SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker’s lien, setoff or counterclaim against the Borrowers, or pursuant to
a secured claim under Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the unpaid
principal portion of its Loans of any Class shall be proportionately less than the unpaid principal
portion of the Loans of such Class of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans of such other Lender, so that the aggregate
unpaid principal amount of the Loans and participations in Loans of any Class held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all Loans of such Class
then outstanding as the principal amount of its Loans of such Class prior to such exercise of
banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans of
such Class outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other
event; provided, however, that, if any such purchase or purchases or adjustments
shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without interest. For purposes of
this Section 2.18, the Revolving Loans of any Lender shall include such Lender’s Letter of Credit
Exposure. Each of the Borrowers expressly consents to the foregoing arrangements and agrees that
any Lender holding a participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrowers to such Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrowers in the amount of such interest.



     SECTION 2.19. Payments.




     (a) Unless expressly provided otherwise herein, the Borrowers shall make each payment
(including principal of or interest on any Borrowing or any Fees or other amounts) hereunder
or under any other Loan Document without setoff, defense or counterclaim not later than the
time required by subparagraph 2.19(d) below, on the date when due in dollars to the
Administrative Agent, in immediately available funds.



 









 






     (b) Whenever any payment (including principal of or interest on any Borrowing or any
Fees or other amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall in such case be included in
the computation of interest or Fees, if applicable.




     (c) With respect to any Foreign Currency Revolving Loan, each payment on account of an
amount due from the Borrowers hereunder or under any other Loan Document shall be made by
such Borrowers to the Administrative Agent in the currency in which such amount is
denominated and in such funds as are customary at the place and time of payment for the
settlement of international payments in such currency. Without limiting the terms of the
preceding sentence, accrued interest on any Loans denominated in a Foreign Currency shall be
payable in the same Foreign Currency as such Loan. Upon request, the Administrative Agent
will give the Borrower a statement showing the computation used in calculating such amount,
which statement shall be conclusive in the absence of manifest error. The obligation of the
Borrowers to make each payment on account of such amount in the currency in which such
amount is denominated shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other currency, except
to the extent such tender or recovery shall result in the actual receipt by the
Administrative Agent of the full amount in the appropriate currency payable hereunder. Each
of the Borrowers agrees that its obligation to make each payment on account of such amount
in the currency in which such amount is denominated shall be enforceable as an additional or
alternative claim for recovery in such currency of the amount (if any) by which such actual
receipt shall fall short of the full amount of such currency payable hereunder, and shall
not be affected by judgment being obtained for such amount.




Except as otherwise specifically provided herein, each payment (including principal of or
interest on, any Loan, any Fees, or other fees or amounts) hereunder and under any
instrument delivered hereunder shall be made to the Administrative Agent at such place as
may be designated by the Administrative Agent to the Borrower in writing in immediately
available funds, without offset, deduction, counterclaim or withholding of any kind, prior
to 11:00 a.m., local time in the place where such payment is required to be made pursuant to
this subsection (d) on the date due. Any payments received after such time shall be deemed
received on the next succeeding Business Day.



     SECTION 2.20. Taxes.




     (a) Any and all payments by or on behalf of the Borrower or any Subsidiary hereunder
and under any other Loan Document shall be made, in accordance with Section 2.19, free and
clear of and without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) income taxes or branch profit taxes imposed on the net income of the
Administrative Agent, any Lender or the Issuing Bank (or any transferee or assignee thereof,
including a participation holder (any such entity a “Transferee”)) and (ii)
franchise taxes imposed on the net income of the Administrative Agent, any Lender or the
Issuing Bank (or Transferee), in each case by the jurisdiction under the laws of which



 









 







the Administrative Agent, such Lender or the Issuing Bank (or Transferee) is organized
or any political subdivision thereof or the jurisdiction in which such Lender or Transferee
has its applicable lending office (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being called
“Taxes” and all such excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being called “Excluded Taxes”). Subject to the
provisions of Section 2.20(f) if the Borrower or any Subsidiary shall be required to deduct
any Taxes from or in respect of any sum payable hereunder or under any other Loan Document
to any Lender or the Issuing Bank (or any Transferee) or the Administrative Agent, (A) the
sum payable shall be increased by the amount (an “additional amount”) necessary so
that after making all required deductions (including deductions applicable to additional
sums payable under this Section 2.20 but excluding Excluded Taxes) such Lender or the
Issuing Bank (or Transferee) or the Administrative Agent, as the case may be, shall receive
an amount equal to the sum it would have received had no such deductions been made, (B) the
Borrower or such Subsidiary shall make such deductions and (C) the Borrower or such
Subsidiary shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.




     (b) In addition, the Borrowers agree to pay to the relevant Governmental Authority in
accordance with applicable law, any current or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies (including mortgage recording
taxes and similar fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document (“Other Taxes”).




     (c) The Borrowers will jointly and severally indemnify each Lender (or Transferee), the
Administrative Agent and Issuing Bank (or Transferee) for the full amount of Taxes and Other
Taxes paid by such Lender (or Transferee) or the Administrative Agent or the Issuing Bank,
as the case may be, and any liability (excluding Excluded Taxes, but including penalties,
interest and expenses (including reasonable attorneys’ fees and expenses)) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability and the method of computation thereof prepared by the Administrative
Agent, a Lender or the Issuing Bank (or Transferee) or the Administrative Agent on its
behalf, absent manifest error, shall be final, conclusive and binding for all purposes.
Such indemnification shall be made within 30 days after the date the Administrative Agent,
any Lender or Issuing Bank (or Transferee), as the case may be, makes written demand
therefor and provides the Borrower with the certificate described above.




     (d) If (i) any Lender (or Transferee) or the Administrative Agent shall be notified by
the Borrower that it has determined in good faith that a reasonable basis exists for such
Lender (or Transferee) or the Administrative Agent to claim a refund in respect of Taxes or
Other Taxes as to which it has been indemnified by the Borrowers, or with respect to which
the Borrowers have paid additional amounts pursuant to this Section 2.20, and (ii) such
Lender (or Transferee) or the Administrative Agent, as applicable, concurs in such
determination and determines in good faith that seeking such refund will



 









 







not have an adverse effect on such person, then, within 30 days after receipt of
request by the Borrower, such Lender (or Transferee) or the Administrative Agent, as
applicable, shall make a claim to such Governmental Authority for such refund at the
Borrowers’ expense. If any Lender (or Transferee) or the Administrative Agent receives a
refund (including pursuant to a claim for refund made pursuant to the preceding sentence) in
respect of any Taxes or Other Taxes as to which it has been indemnified by the Borrowers, or
with respect to which the Borrowers have paid additional amounts, pursuant to this Section
2.20, it shall within 30 days from the date of such receipt, so long as no Event of Default
has occurred and is continuing, pay over such refund to the Borrowers (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers under this
Section 2.20 with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of such Lender (or Transferee) or the Administrative Agent and
without interest (other than interest paid by the relevant Governmental Authority with
respect to such refund); provided, however, that the Borrowers, upon the
request of such Lender (or Transferee) or the Administrative Agent, agree to repay the
amount paid over to the Borrowers (plus penalties, interest or other charges) to such Lender
(or Transferee) or the Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund to such Governmental Authority.




     (e) As soon as practicable after the date of any payment of Taxes or Other Taxes by the
Borrower or any Subsidiary to the relevant Governmental Authority, the Borrower or such
Subsidiary will deliver to the Administrative Agent, at its address referred to in Section
9.01, the original or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.




     (f) Each Lender (or Transferee) that is organized under the laws of a jurisdiction
other than the United States, any State thereof or the District of Columbia (a “Non-U.S.
Lender”) shall deliver to the Borrower and the Administrative Agent two copies of (i)
either United States Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of
a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement and the other Loan Documents and (ii) an Internal Revenue Service Form W-8 or W-9
entitling such Non-U.S. Lender to receive a complete exemption from United States backup
withholding tax. Such forms shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes a Transferee
hereunder) and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office,(a “New Lending Office”).
In



 









 







addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence
or invalidity of any form previously delivered by such Non-U.S. Lender. If a Non-U.S.
Lender who has delivered the forms referred to above on the date it becomes a party to this
Agreement (or, in the case of a Transferee, on the date that it becomes a Transferee
hereunder) determines that it is unable subsequently to submit to the Borrower any such
form, or that it is required to withdraw or cancel any such form, such Non-U.S. Lender shall
promptly notify the Borrower of such fact. Notwithstanding any other provision of this
Section 2.20(g), a Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.20(g) that such Non-U.S. Lender is not legally able to deliver.




     (g) The Borrowers shall not be required to indemnify any Non-U.S. Lender, or to pay any
additional amounts to any Non-U.S. Lender, in respect of United States Federal withholding
tax pursuant to paragraph (a) or (c) above to the extent that (i) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S. Lender to comply
with Section 2.20(f) or (ii) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender become a party to
this Agreement (or, in the case of a Transferee that is a participation holder, on the date
such participation holder became a Transferee hereunder) or, with respect to payments to a
New Lending Office, the date such Non-U.S. Lender designated such New Lending Office with
respect to a Loan; provided, however, that this clause (ii) shall not apply
(A) to any Transferee or New Lending Office that becomes a Transferee or New Lending Office
as a result of an assignment, participation, transfer or designation made at the request of
the Borrower and (B) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee) acting through a New Lending Office, would be
entitled to receive (without regard to this clause (ii)) do not exceed the indemnity payment
or additional amounts that the person making the assignment, participation or transfer to
such Transferee, or Lender (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (f) above.




     (h) Nothing contained in this Section 2.20 shall require any Lender or Issuing Bank (or
Transferee) or the Administrative Agent to make available any of its tax returns (or any
other information that it deems to be confidential or proprietary).




     (i) The provisions of this Section 2.20 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or
any investigation made by or on behalf of the Administrative Agent or any Lender.



     SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate.



 









 






     (a) In the event (i) any Lender or Issuing Bank delivers a certificate requesting
compensation pursuant to Section 2.14, (ii) any Lender or Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrowers are required to pay any additional amount
to any Lender or Issuing Bank or any Governmental Authority on account of any Lender or
Issuing Bank pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender or Issuing Bank and the Administrative Agent, as the
case may be, require such Lender or Issuing Bank, as applicable, to transfer and assign,
without recourse (in accordance with and subject to the restrictions contained in Section
9.04), all of its interests, rights and obligations under this Agreement to an assignee
reasonably acceptable to the Administrative Agent that shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided, that (A) such assignment shall not conflict with any law, rule or
regulation or order of any court or other Governmental Authority having jurisdiction, (B)
the Borrower shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, of the Issuing Bank and the Swingline
Lender), which consent shall not unreasonably be withheld, (C) no Event of Default shall
have occurred and be continuing and (D) the Borrowers or such assignee shall have paid to
the affected Lender or the Issuing Bank in immediately available funds an amount equal to
the sum of 100% of the principal of and interest accrued to the date of such payment on the
outstanding Loans or Letter of Credit Disbursements of such Lender or Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such Lender or the
Issuing Bank hereunder (including any amounts under Section 2.14 and Section 2.16);
provided, further, that if prior to any such assignment the circumstances or
event that resulted in such Lender’s notice or certificate under Section 2.14 or 2.15 or
demand for additional amounts under Section 2.20, as the case may be, shall cease to exist
or become inapplicable for any reason or if such Lender shall waive its rights in respect of
such circumstances or event under Section 2.14, 2.15, 2.16 or 2.20, as the case may be, then
such Lender shall not thereafter be required to make any such assignment hereunder.




     (b) If (i) any Lender or Issuing Bank shall request compensation under Section 2.14,
(ii) any Lender or Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrowers are required to pay any additional amount to any Lender or Issuing Bank or any
Governmental Authority on account of any Lender or Issuing Bank, pursuant to Section 2.20,
then such Lender or Issuing Bank shall use reasonable efforts (which shall not require such
Lender or Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be significant) (A) to
file any certificate or document reasonably requested in writing by the Borrower or (B) to
assign its rights and delegate and transfer its obligations hereunder to another of its
offices, branches or affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15
or would reduce amounts payable pursuant to Section 2.20, as the case may be, in the future.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
or Issuing Bank in connection with any such filing or assignment, delegation and transfer.



 









 





     SECTION 2.22. Swingline Loans.




     (a) Swingline Loans. The Borrower shall notify the Administrative Agent by
telecopy, or by telephone (confirmed by telecopy), not later than 12:00 (noon), Eastern
Standard Time, on the day of a proposed Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the
requested date (which shall be a Business Day) and amount of such Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any notice received from
the Borrower pursuant to this paragraph (a). The Swingline Lender shall make each Swingline
Loan available to the Borrower by means of a credit to the general deposit account of the
Borrower with the Swingline Lender by 6:00 p.m., Eastern Standard Time, on the date such
Swingline Loan is so requested.




     (b) Prepayment. The Borrower shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving written or telecopy
notice (or telephone notice promptly confirmed by written, or telecopy notice) to the
Swingline Lender and to the Administrative Agent before 12:00 noon, Eastern Standard Time,
on the date of prepayment at the Swingline Lender’s address for notices specified in Section
9.01.




     (c) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 1:00 p.m., Eastern Standard Time, on any Business Day
require the Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which Lenders will participate. The Administrative Agent will, by 2:00
p.m., Eastern Standard Time, on the date of receipt of such notice, give notice to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan
or Loans. In furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent by 4:00 p.m., Eastern Standard Time, on the date such notice is
received from the Swingline Lender, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default, and that each
such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.03(d)
with respect to Loans made by such Lender (and Section 2.03(c) shall apply, mutatis
mutandis, to the payment obligations of the Lenders) and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders.
The Administrative Agent shall notify the Borrower of any participations in any Swingline
Loan acquired pursuant to this paragraph and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of



 









 







participations therein shall be promptly remitted to the Administrative Agent, any such
amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower
(or other party liable for obligations of the Borrower) of any default in the payment
thereof.



     SECTION 2.23. Letters of Credit.




     (a) The Borrower may request the issuance of (i) Letters of Credit in dollars, in form
and substance reasonably acceptable to the Administrative Agent and the Issuing Bank, for
the account of the Borrowers, at any time and from time to time during the Letter of Credit
Availability Period; provided, that, any such Letter of Credit shall be
issued only if, and each request by the Borrower for the issuance of any Letter of Credit
shall be deemed a representation and warranty of the Borrowers that, immediately following
the issuance of such Letter of Credit, (A) the aggregate Dollar Amount of Letter of Credit
Exposure resulting from Letters of Credit does not exceed $50,000,000, and (B) the Aggregate
Outstanding Credit Exposure does not exceed the Aggregate Commitment at such time, and (ii)
Foreign Currency Letters of Credit, in form and substance reasonably acceptable to the
Administrative Agent and the Issuing Bank for the account of the Borrowers, at any time and
from time to time during the Letter of Credit Availability Period; provided,
that, any such Foreign Currency Letter of Credit shall be issued only if, and each
request by the Borrower for the issuance of any such Foreign Currency Letter of Credit shall
be deemed a representation and warranty of the Borrowers that, immediately following the
issuance of such Foreign Currency Letter of Credit (A) the aggregate Dollar Amount of
Foreign Currency Letter of Credit Exposure does not exceed the Aggregate Foreign Currency
Commitment and (B) the Aggregate Outstanding Credit Exposure does not exceed the aggregate
amount of the Aggregate Commitment at such time. In no event shall an Issuing Bank be
obligated to issue any Letter of Credit if after giving effect thereto, the Aggregate
Outstanding Credit Exposure would exceed the Aggregate Commitment. For purposes hereof,
the “issuance” of a Letter of Credit includes the amendment, renewal or extension of a
Letter of Credit.




     (b) Each Commercial LC shall expire no later than earlier of (i) 270 days after the
date of issuance of such Letter of Credit and (ii) the fifth Business Day prior to the
Revolving Credit Maturity Date. Each Standby LC shall expire no later than the fifth
Business Day prior to the Revolving Credit Maturity Date.




     (c) Each issuance of any Letter of Credit shall be made on at least two Business Days’
prior irrevocable written or telecopy notice (such notice to be delivered by 12:00 noon,
Eastern Standard Time) from the Borrower (or such shorter notice as shall be acceptable to
the Issuing Bank) to the Administrative Agent at its address set forth in Section 9.01 and
the Issuing Bank specifying whether such Letter of Credit is a Standby LC or a Commercial
LC, the date of issuance, the date on which such Letter of Credit is to expire, the amount
of such Letter of Credit, whether such Letter of Credit is to be issued in dollars or a
Foreign Currency (and if such Letter of Credit is to be issued in a



 









 







Foreign Currency, the applicable Foreign Currency), the name and address of the
beneficiary of such Letter of Credit, and such other information as may be necessary or
desirable to complete such Letter of Credit. The Issuing Bank will give the Administrative
Agent prompt notice of the issuance and amount of such Letter of Credit and the expiration
date of such Letter of Credit (and the Administrative Agent shall give prompt notice thereof
to each Lender). During the Letter of Credit Availability Period, the Issuing Bank also
will give the Administrative Agent (i) if and when requested, notice of the amount available
to be drawn under each outstanding Letter of Credit and (ii) prompt notice of any payment or
disbursement that has been or will be made under any Letter of Credit.




     (d) By the issuance of a Letter of Credit and without any further action on the part of
the Issuing Bank, the Administrative Agent or the Lenders in respect thereof, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent
for the account of the Issuing Bank, in accordance with Section 2.03(e), such Lender’s
Applicable Percentage of the amount of each Letter of Credit Disbursement in the currency of
such disbursement made by the Issuing Bank and not reimbursed by the Borrowers when due in
accordance with Section 2.23(g).




     (e) Each Lender acknowledges and agrees that its obligation to acquire participations
pursuant to Section 2.23(d) in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.




     (f) The Borrower shall pay to the Administrative Agent, for the account of the Lenders
and the Issuing Bank, as applicable, a nonrefundable Letter of Credit Fee and Fronting Fee
in accordance with Section 2.06(b). In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Bank for such normal and customary costs and
expenses, including, without limitation, administrative, issuance, amendment, payment and
negotiation charges, as are incurred or charged by the Issuing Bank in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit (including any
Letter of Credit issued for the account of a Subsidiary).




     (g) The applicable Borrower hereby agrees to reimburse the Issuing Bank for any payment
or disbursement made by the Issuing Bank under any Letter of Credit (including any Letter of
Credit issued for the account of a Subsidiary), by making payment in immediately available
funds, to the Administrative Agent on the same Business Day after receipt of notice of such
payment or disbursement (or notice that such payment or disbursement will be made), in the
amount and currency of such payment or disbursement, plus interest on the amount so paid or
disbursed by the Issuing Bank, at a rate per annum equal to the greater of (i) the rate
applicable to ABR Loans pursuant to Section 2.07 or (ii) the cost on a per annum basis to
the Issuing Bank of the funds so paid



 









 







or disbursed under the Letter of Credit plus the Applicable LIBOR Margin (such cost
plus such margin being referred to herein as the “Cost of Funds”); provided,
that, if such amount is not reimbursed prior to 2:00 p.m., Eastern Standard Time, on
the same Business Day after receipt by the Borrower of the notice of such payment or
disbursement (or notice that such payment or disbursement will be made), interest shall
thereafter accrue on such unreimbursed amount at a rate per annum equal to the greater of
(i) the rate applicable to ABR Loans during such period pursuant to Section 2.07, plus 2.00%
or (ii) the Cost of Funds plus 2.00%. The Administrative Agent shall promptly pay any such
amounts received by it to the Issuing Bank. Borrowers hereby agree to indemnify and hold
harmless the Administrative Agent, each Issuing Bank, and each Lender (in any capacity
hereunder) from and against any and all loss, liability, cost, and expense arising at any
time or times from the exchange of one or more currencies for one or more other currencies
hereunder.




     (h) The Borrowers’ obligation to reimburse Letter of Credit Disbursements as provided
in Section 2.23(g) shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement under any and all circumstances
whatsoever, and irrespective of:




     (i) any lack of validity or enforceability of any Letter of Credit or any other
Loan Document or any term or provision therein;




     (ii) the existence of any claim, setoff, defense or other right which the
Borrowers, any Subsidiary or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the Administrative Agent,
any Lender or any other person, whether in connection with this Agreement, any other
Loan Document or any other related or unrelated agreement or transaction;




     (iii) any draft or other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or failing to comply
with the Uniform Customs and Practices for Documentary Credits, as in effect from
time to time, or any statement therein being untrue or inaccurate in any respect,




     (iv) payment by the Issuing Bank under a Letter of Credit against presentation
of a draft or other document which does not comply with the terms of such Letter of
Credit;




     (v) any amendment, waiver or consent in respect of this Agreement or any other
Loan Document; and




     (vi) any other act or omission or delay of any kind or any other circumstance
or event whatsoever, whether or not similar to any of the foregoing and whether or
not foreseeable, that might, but for the provisions of this Section 2.23(h),
constitute a legal or equitable discharge of the Borrowers’ obligations hereunder.



 









 






     (i) Without limiting the generality of the provisions of the foregoing paragraph (h),
it is expressly understood and agreed that the absolute and unconditional obligation of the
Borrowers hereunder to reimburse Letter of Credit Disbursements will not be excused by the
gross negligence or willful misconduct of the Issuing Bank. However, the preceding sentence
and the provisions of Section 2.23(h) shall not be construed to excuse the Issuing Bank from
liability to the Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the extent
permitted by applicable law) suffered by the Borrowers that are caused by the Issuing Bank’s
bad faith, gross negligence or willful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. It is
understood that the Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of Credit (i) the
Issuing Bank’s exclusive reliance in good faith on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including reliance on the
amount of any draft presented under such Letter of Credit, if such document on its face
appears to be in order, and whether or not any other statement or any other document
presented pursuant to such Letter of Credit proves to be forged or invalid or any statement
therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any
noncompliance in any immaterial respect of the documents presented under such Letter of
Credit with the terms thereof shall, in each case, be deemed not to constitute bad faith,
gross negligence or willful misconduct of the Issuing Bank.




     (j) The Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit. The
Issuing Bank shall as promptly as possible give telephonic notification, confirmed by telex
or telecopy, to the Administrative Agent and the Borrower of such demand for payment and
whether the Issuing Bank has made or will make a Letter of Credit Disbursement thereunder;
provided, that, the failure to give such notice shall not relieve the
Borrowers of its obligation to reimburse any such Letter of Credit Disbursement in
accordance with this Section 2.23. The Administrative Agent shall promptly give each Lender
notice thereof.




     (k) In the event that the Borrowers are required or elect pursuant to the terms of this
Agreement, including, but not limited to, Section 2.12(c) (other than Article VII) or any
other Loan Document, to provide cash collateral in respect of the Letter of Credit Exposure,
the Borrowers shall deposit in an account with the Administrative Agent, for the benefit of
each Lender, an amount in cash equal to the amount of such Letter of Credit Exposure (or
such lesser amount as shall be required hereunder or thereunder); the amount to be deposited
shall be denominated in the currency or currencies of the Letter(s) of Credit outstanding as
determined by the Issuing Bank. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the Obligations to Lenders. The
Administrative Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on the investment of
such deposits in Cash Equivalents, which investments shall be made as directed by the
Borrower (subject, however, to the




 










 






preservation of such deposits in the currency in which deposited and unless such
investments shall be contrary to applicable law or regulation or a Default or Event of
Default shall have occurred and be continuing, in which case the Administrative Agent shall
determine in its discretion whether to make investments and, if so, shall determine in its
discretion the Cash Equivalents to be selected), such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account.
Borrowers hereby pledge all such deposits and accounts and cash collateral, together with
the proceeds, investments, and increases thereof and the interest thereon, to the
Administrative Agent for the benefit of the Issuing Banks and the other Lenders to secure
payment and performance of the Obligations. Moneys in such account shall automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for Letter of Credit
Disbursements and, if the maturity of the Loans has been accelerated, to satisfy the
Obligations to the Lenders. If the Borrowers are required to provide an amount of cash
collateral hereunder pursuant to Section 2.12(c), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrowers upon demand; provided, that,
after giving effect to such return, (i) the sum of the Dollar Amount of the aggregate Letter
of Credit Exposure, plus the aggregate outstanding Swingline Exposure, plus the aggregate
outstanding Dollar Amount of Revolving Loans would not exceed the aggregate Revolving Credit
Commitments, (ii) the Dollar Amount of Letters of Credit does not exceed the Aggregate
Commitment, and (iii) no Default or Event of Default shall have occurred and be continuing.
In the event that the Borrowers are required pursuant to the terms of Article VII of this
Agreement to provide cash collateral in respect of Letter of Credit Exposure, the Borrowers
shall deposit such cash collateral in an account with the Collateral Agent pursuant to the
Collateral Agency Agreement. Such deposit shall be held by the Collateral Agent in
accordance with the Collateral Agency Agreement. Any such deposit to be held by the
Administrative Agent or the Collateral Agent, as provided herein, shall be accompanied by
notice from the Borrower, in form satisfactory to the Administrative Agent or the Collateral
Agent, as the case may be, setting forth the basis for such deposit, identifying in
reasonable detail the Letters of Credit to which such deposit relates, and setting forth any
other information related to such deposit reasonably requested by the Administrative Agent
or the Collateral Agent, as the case may be. The Borrowers shall promptly provide the
Administrative Agent with a copy of any such notice to the Collateral Agent and shall
promptly provide the Collateral Agent with a copy of any such notice to the Administrative
Agent. If the Borrowers are required to provide an amount of cash collateral hereunder as a
result of an Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrowers within three Business Days after all Events of Default have been
cured or waived.



     SECTION 2.24. Existing Letters of Credit. It is understood and agreed that
notwithstanding any other provision hereof the Existing Letters of Credit shall, on the Effective
Date, be deemed Letters of Credit issued hereunder as of the Effective Date as to which JPMorgan is
the Issuing Bank and in which each Lender shall participate in accordance with Section 2.23(d).



     SECTION 2.25. Extension of Revolving Credit Maturity Date. The Borrower may request
a one-year extension of the Revolving Credit Maturity Date by submitting a request for



 









 







an extension to the Administrative Agent (an “Extension Request”) no more than 180 and
no less than 90 days prior to the Revolving Credit Maturity Date. Promptly upon receipt of an
Extension Request, the Administrative Agent shall notify each Lender thereof and shall request each
Lender to act upon the Extension Request. Each Lender approving the Extension Request shall
deliver its written consent no later than 45 days prior to the Revolving Credit Maturity Date. If
and only if the consent of each of the Lenders is received by the Administrative Agent prior to the
Revolving Credit Maturity Date, the Revolving Credit Maturity Date shall be extended by one year
and the Administrative Agent shall promptly notify the Borrower and each Lender of the new
Revolving Credit Maturity Date.



ARTICLE III




REPRESENTATIONS AND WARRANTIES




     Each of the Borrowers represents and warrants to each of the Lenders that:



     SECTION 3.01. Organization, Powers. Each of the Borrower and the Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and assets and to carry
on its business as now conducted and as proposed to be conducted, (c) is qualified to do business
in every jurisdiction where such qualification is required, except where the failure so to qualify
would not result in a Material Adverse Effect, and (d) has the requisite power and authority to
execute, deliver and perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party and, in the case of
the Borrowers, to obtain extensions of credit hereunder.



     SECTION 3.02. Authorization. The execution, delivery and performance by each of the
Borrower and the Subsidiaries of each of the Loan Documents to which it is or will be a party
(including the exercise of remedies thereunder) and, in the case of the Borrowers, the extensions
of credit hereunder (a) have been duly authorized by all requisite corporate or partnership and, if
required, stockholder action and (b) will not (i) violate (A) any provision of law, statute, rule
or regulation, (B) any provision of the certificate of incorporation, partnership agreement,
operating agreement or other constitutive documents or by-laws of the Borrower and the
Subsidiaries, (C) any order of any Governmental Authority or (D) any provision of any Material
Contract to which the Borrower or any of the Subsidiaries is a party or by which any of them or any
of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a Default or give rise to increased, additional,
accelerated or guaranteed rights of any person under any Material Contract or (iii) except for the
Liens of the Collateral Documents, result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by the Borrower or any of the
Subsidiaries.



     SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by
the Borrowers and constitutes, and each other Loan Document when executed and delivered by the
Borrower or any of the Subsidiaries will constitute, a legal, valid and binding obligation of such
party enforceable against such party in accordance with its terms, subject to the effect of



 









 







bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance,
voidable preference or similar laws and the application of equitable principles generally.



     SECTION 3.04. Consents and Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by (a) any Governmental Authority, (b) any
creditor or shareholder of the Borrowers or any creditor, shareholder, partner or member of the
Subsidiaries, (c) any counterparty to a Material Contract or (d) except where failure to take or
obtain such action, consent or approval of, registration or filing with or such other action could
not reasonably be expected to have a Material Adverse Effect, any other person, is or will be
required in connection with the Revolving Credit Facility or the performance by the Borrower or any
of the Subsidiaries of the Loan Documents to which it is or will be a party, in each case except
such as have been made or obtained and are in full force and effect.



     SECTION 3.05. Financial Statements, Undisclosed Liabilities.




     (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income and cash flows as of and for the 2006 Fiscal Year, audited by and
accompanied by the unqualified opinion of Ernst & Young LLP, independent registered public
accountants. Such financial statements present fairly the financial condition and results
of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of such
dates and for such periods. Such balance sheet and the notes thereto disclose all material
liabilities, direct, contingent or otherwise, of the Borrower and its Consolidated
Subsidiaries as of the dates thereof for which disclosure is required in accordance with
GAAP. Such financial statements were prepared in accordance with GAAP applied on a
consistent basis, except as otherwise noted therein.




     (b) As of the Effective Date, the Borrower and the Subsidiaries do not have any
material liability, contingent or otherwise, required by GAAP to be set forth on a
consolidated balance sheet of the Borrower, except (i) as set forth in the financial
statements referred to in Section 3.05(a), (ii) for items set forth in Schedule
3.05(b) and (iii) for liabilities and obligations incurred in the ordinary course of
business consistent with past practice.



     SECTION 3.06. No Material Adverse Change. Since August 31, 2006, and as of the
Effective Date, there has not been any Material Adverse Change in the business of the Borrower.



     SECTION 3.07. Title to Properties, Possession Under Leases.




     (a) Each of the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests or licenses in, all its properties and assets (including without
limitation, real property and intellectual property interests), except for defects in title
that do not materially interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes. All such
properties and assets are free and clear of Liens, other than Liens permitted by Section
6.02.




     (b) Each of the Borrower and the Subsidiaries has complied in all material respects
with all obligations under all material leases to which it is a party and all such



 









 







leases are in full force and effect. Each of the Borrower and the Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases.



     SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth a list of all of the
Subsidiaries as of the date hereof, the respective jurisdictions of organization thereof and the
percentage ownership interest, direct or indirect, of the Borrower therein. All of the
Subsidiaries are Consolidated Subsidiaries.



     SECTION 3.09. Litigation; Compliance with Laws.




     (a) As of the Effective Date, except as set forth in Schedule 3.09 or as fully
covered by third party insurance, there are no pending or, to the knowledge of the Borrower,
threatened litigation, arbitrations or other proceedings against the Borrower or any
Subsidiary involving a claim for more than $2,000,000. Except as noted on Schedule
3.09, there are no lawsuits, claims, arbitrations or other proceedings which, if
adversely determined, whether individually or in the aggregate, would have a Material
Adverse Effect. As of the Effective Date, to the knowledge of the Borrower, except as set
forth in Schedule 3.09, neither the Borrower nor any Subsidiary is a party or
subject to or in default under any material judgment, order, injunction or decree of any
Governmental Authority or arbitration tribunal. Except as set forth in Schedule
3.09, there are no actions, suits, investigations or proceedings at law or in equity or
by or before any arbitrator or Governmental Authority now pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower, any of the Subsidiaries or any
business, property or rights of the Borrower or any of the Subsidiaries (i) which involve
any Loan Document or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




     (b) Except as set forth in Schedule 3.09, the Borrower and the Subsidiaries are
in compliance with all applicable statutes, laws, ordinances, rules, orders and regulations
of any Governmental Authority (“Applicable Laws”) including those relating to the
environment, taxes and occupational health and safety, except for instances of noncompliance
that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as set forth in Schedule 3.09 and as of the Effective Date, neither the
Borrower nor any Subsidiary has received any written communication during the past three
years from a Governmental Authority that alleges that the Borrower or a Subsidiary is not in
compliance in any material respect with any Applicable Laws.



     SECTION 3.10. Agreements.




     (a) Each indenture or other agreement or instrument evidencing Indebtedness and each
other material agreement, contract, lease, license, commitment or other instrument (within
the meaning of 17 C.F.R. § 229.601(b)(10)(1996)) to which the Borrower or any of the
Subsidiaries is a party or by which it or any of its properties or assets are or may be
bound as of the Effective Date is listed on Schedule 3.10 hereto (the “Material
Contracts”).



 









 






     (b) Except as set forth in Schedule 3.10, all the Material Contracts are valid,
binding and in full force and effect in all material respects. Except as set forth in
Schedule 3.10, the Borrower and the Subsidiaries have performed all material
obligations required to be performed by them to date under the Material Contracts and they
are not in breach or default in any material respect thereunder and, to the knowledge of the
Borrower, no other party to any of the Material Contracts is in breach or default in any
material respect thereunder. Neither the Borrower, nor any of the Subsidiaries, nor, to the
knowledge of the Borrower, any other party to any Material Contract has given notice of
termination of, or taken any action inconsistent with the continuation of, any Material
Contract. None of such other parties has any presently exercisable right to terminate any
Material Contract nor will any such other party have any right to terminate any Material
Contract on account of the execution, delivery or performance of the Loan Documents.



     SECTION 3.11. Federal Reserve Regulations.




     (a) Neither the Borrower nor any of the 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.




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



     SECTION 3.12. Investment Company Act. Neither the Borrower nor any of the
Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) subject to regulation as a “public utility” or a “public
service corporation” or the equivalent under any Federal or state law.



     SECTION 3.13. Use of Proceeds. The proceeds of all Loans will be used solely (a) to
provide for the ongoing working capital requirements of the Borrower and the Subsidiaries and for
general corporate purposes (including capital expenditures and Permitted Acquisitions) and (b) to
pay related fees and expenses. The Letters of Credit will be issued solely (i) to support various
financial and other performance obligations of the Borrower and the Subsidiaries incurred in the
ordinary course of business.



     SECTION 3.14. Tax Returns. Each of the Borrower and the Subsidiaries has filed or
caused to be filed all Federal, state and local tax returns required to have been filed by it and
has paid or caused to be paid all taxes shown to be due and payable on such returns or on any
assessments received by it, except taxes that are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves in accordance with GAAP have been
set aside on its financial statements.



     SECTION 3.15. No Material Misstatements. The Confidential Information Memorandum and
the exhibits and schedules (except for forecasts and projections) furnished by or on behalf of the
Borrower to the Lenders in connection with the negotiation of any Loan Document or included therein
or delivered pursuant thereto, when taken as a whole and evaluated in the context



 









 







presented, do not contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the circumstances under which
such information was provided. Any such exhibit or schedule which constitutes a forecast or a
projection was prepared in good faith, was based on assumptions that the Borrower believes to be
reasonable and was based on the best information reasonably available to the Borrower.



     SECTION 3.16. Employee Benefit Plans.




     (a) Except as set forth in Schedule 3.16, each of the Borrower and the Commonly
Controlled Entities is in compliance in all material respects with the applicable provisions
of ERISA and the regulations and published interpretations thereunder. Except as set forth
in Schedule 3.16, neither a Reportable Event nor an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred within
the last five years with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred and no Lien in favor of the PBGC or a Plan has arisen during the
five years prior to the Effective Date.




     (b) Except as set forth in Schedule 3.16, the present value of all accrued
benefits under each Single Employer Plan in which the Borrower or any Commonly Controlled
Entity is a participant (based on those assumptions used to fund the Plans) did not, as of
the last annual valuation date, exceed the value of the assets of such Plan allocable to
such accrued benefits.




     (c) Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the last valuation date.




     (d) No such Multiemployer Plan is in “reorganization” or “insolvent,” within the
meaning of such terms as used in ERISA.




     (e) Except as set forth in Schedule 3.16, neither the Borrower nor any Commonly
Controlled Entity has any liability for post retirement benefits to be provided to its
current and former employees.




     (f) No prohibited transaction under ERISA or the Code has occurred with respect to any
Multiemployer Plan or Single Employer Plan which could have a Material Adverse Effect.



     SECTION 3.17. Environmental and Safety Matters. As of the Effective Date, except as
set forth in Schedule 3.17, each of the Borrower and the Subsidiaries has complied in all
material respects with all applicable Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to protection of the environment or to employee health
or safety. As of the Effective Date, except as set forth in Schedule 3.17, neither the
Borrower nor any Subsidiary has received notice of any material failure so to comply. The
facilities of the



 









 







Borrower and the Subsidiaries do not manage or contain any hazardous wastes, hazardous
substances, hazardous materials, toxic substances, toxic pollutants or similarly denominated
substances, as those terms or similar terms are used in the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any
other applicable law relating to protection of the environment, human health or to employee health
and safety (collectively, “Hazardous Materials”), in violation in any material respect of
any such law or any regulations promulgated pursuant thereto. Except as set forth in Schedule
3.17, to the knowledge of the Borrowers, there are no events, conditions or circumstances
involving environmental pollution, regulation or control or employee health or safety that are
reasonably likely to result in any material liabilities being incurred by the Borrower or any
Subsidiary.



     SECTION 3.18. Security Interests.




     (a) The Collateral Agent for the benefit of the Secured Parties will at all times have
the Liens provided for in the Collateral Documents and, subject to the filing by the
Borrower of continuation statements to the extent required by the Uniform Commercial Code,
and the continuing possession by the Collateral Agent of the certificates representing the
securities pledged pursuant to the Pledge Agreement, the Collateral Documents will at all
times constitute a valid and continuing lien of record and first priority perfected security
interest in all the Collateral referred to therein. No filings or recordings are required
in order to perfect the security interests created under the Collateral Documents, except
for filings or recordings listed on Schedule 3.18. All such listed filings and
recordings will have been made on or prior to the Effective Date.




     (b) All of the shares of common stock of each Subsidiary have been duly and validly
authorized and issued, are fully paid and nonassessable, and were not issued in violation of
the preemptive rights of any stockholder. The Borrower owns, directly or indirectly, good
and valid title to 100% (or such other percentage as the Borrower does own, directly or
indirectly, as noted on Schedule 3.08) of the Capital Stock of each Subsidiary, free
and clear of all Liens, other than the Liens of the Collateral Documents, of every kind,
whether absolute, matured, contingent or otherwise. There are no existing options,
warrants, calls or commitments relating to, or any securities or rights convertible into,
exercisable for or exchangeable for, any Capital Stock of the Subsidiaries.



     SECTION 3.19. (a) Solvency. After the making of each Loan made on the Effective
Date and the uses of proceeds therefrom, each of the Borrower and the Guarantors will be Solvent on
the Effective Date. “Solvent” means, with respect to any person, that (i) the fair value
of the assets of such person, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of such person; (ii) the present fair saleable value of the
property of such person will be greater than the amount that will be required to pay the
liabilities of such person on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (iii) such person will
be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) such person will not have an unreasonably small
amount of capital with which to conduct the businesses in which it is engaged as such businesses
are now conducted and



 









 







are proposed to be conducted. With respect to any contingent liabilities, such liabilities
shall be computed at the amount which, in light of all the facts and circumstances existing at the
time, represents the amount which can reasonably be expected to become an actual or matured
liability.




     (b) The Borrower does not intend to, or to permit any of the Guarantors to, and does
not believe that the Borrower or any of the Guarantors will, incur debts beyond its ability
to pay such debts as they mature taking into account the timing of and amounts of cash to be
received by the Borrower or any such Guarantor and the timing of and amounts of cash to be
payable on or in respect of indebtedness of the Borrower or any such Guarantor.



     SECTION 3.20. Labor Matters. (a) As of the Effective Date, except as set forth in
Schedule 3.20, there is no labor strike, dispute, work stoppage or lockout pending or, to
the knowledge of the Borrower, threatened against the Borrower or a Subsidiary; (b) to the
knowledge of the Borrower, as of the Effective Date, no union organizational campaign is in
progress with respect to the employees of the Borrower or a Subsidiary; (c) as of the Effective
Date, there is no unfair labor practice charge or complaint against the Borrower or a Subsidiary
pending or, to the knowledge of the Borrower, threatened before the National Labor Relations Board;
(d) there are no pending or threatened union grievances against the Borrower or a Subsidiary as to
which there is a reasonable possibility of adverse determination and that, if so determined, would
have a Material Adverse Effect; (e) there are no pending, or, to the knowledge of the Borrower,
threatened, charges against the Borrower, a Subsidiary or any current or former employee of the
Borrower before the Equal Employment Opportunity Commission or any state or local agency
responsible for the prevention of unlawful employment practices which individually or in the
aggregate are reasonably likely to have a Material Adverse Effect; and (f) as of the Effective
Date, none of the Borrower and the Subsidiaries has received written notice during the past three
years of the intent of any Governmental Authority responsible for the enforcement of labor or
employment laws to conduct an investigation of the Borrower or a Subsidiary and, to the knowledge
of the Borrower, no such investigation is in progress.



ARTICLE IV




CONDITIONS OF LENDING




     SECTION 4.01. Conditions Precedent to the Effective Date. This Agreement shall
become effective on the first date (the “Effective Date”) when all of the following
conditions precedent set forth in this Section 4.01, and the additional conditions precedent set
forth in Section 4.02, have been satisfied:




     (a) The Administrative Agent shall have received (i) counterparts hereof signed by each
of the parties (or, in the case of any Lender as to which an executed counterpart shall not
have been received, telecopy or other written confirmation from such party in form
satisfactory to the Administrative Agent of the execution of a counterpart hereof by such
Lender), (ii) counterparts of the Borrower’s Consent and Agreement signed by each of the
parties thereto (or, in the case of any Lender as to which



 









 







an executed counterpart shall not have been received, telecopy or other written
confirmation from such party in form satisfactory to the Administrative Agent of the
execution of the counterpart thereof by such Lender), and (iii) counterparts of the
Subsidiary’s Consent and Agreement signed by each of the parties thereto (or, in the case of
any Lender as to which an executed counterpart shall not have been received, telecopy or
other written confirmation from such party in form satisfactory to the Administrative Agent
of the execution of the counterpart thereof by such Lender).




     (b) The Administrative Agent shall have received for the account of each Lender
requesting the same a duly executed Note or Notes, dated the Effective Date, complying with
the provisions of Section 2.05, and all Notes issued by the Borrowers to the Lenders under
the Existing Credit Agreement are deemed cancelled and terminated regardless of whether such
Notes have been returned in accordance with the Existing Credit Agreement, and such Notes
will be (to the extent new Notes are requested) replaced as applicable, by the Notes dated
the Effective Date and issued to the Lenders hereunder.




     (c) The Collateral Agent on behalf of the Secured Parties shall have a security
interest in the Collateral of the type and priority described in the Collateral Documents,
perfected to the extent contemplated by Section 3.18 and the Administrative Agent shall have
received:




     (i) confirmation by the Borrower and the Collateral Agent that the Collateral
Agent has previously received with respect to all Pledged Securities (as defined in
the Pledge Agreement), stock certificates (to the extent the same are certificated)
accompanied by stock or note powers endorsed in blank or else has made arrangements
satisfactory to the Administrative Agent for the delivery of same within, subject to
Section 5.14 hereof, sixty days after the date hereof (and the Borrower agrees to
cause all such deliveries, subject to Section 5.14, to be made within such time
period); and




     (ii) confirmation by the Borrower that no additional filing, registration or
recordation of any document (including any Uniform Commercial Code financing
statement) is required to be filed, registered or recorded in order to create in
favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal
and perfected security interest in or Lien on the Collateral except for filings
(“Effective Date Filings”) disclosed to the Administrative Agent and as to
which arrangements for filing satisfactory to the Administrative Agent have been
made as of the Effective Date.




     (d) The Administrative Agent shall have received (i) an opinion of Thompson Hine LLP,
counsel to the Borrower and the Subsidiaries and (ii) an opinion of counsel to the
Subsidiary Borrower, in each case in form and substance satisfactory to the Administrative
Agent, each dated the Effective Date and addressed to the Administrative Agent and the
Lenders.




     (e) The Administrative Agent shall have received:



 









 






     (i) copies of the certificate of incorporation of the Borrowers and each
Guarantor, together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation;




     (ii) copies, certified by the Secretary or Assistant Secretary of the Borrowers
and each Guarantor, of its by-laws and of its Board of Directors’ resolutions and of
resolutions or actions of any other body authorizing the execution of the Loan
Documents to which such person is a party;




     (iii) an incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrowers and each Guarantor, which shall identify by name and
title and bear the signatures of the Responsible Officers and any other officers of
the Borrowers and each Guarantor authorized to sign the Loan Documents to which the
Borrowers or such Guarantor is a party, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed of any change in
writing by the Borrowers or such Guarantor;




     (iv) an Officer’s Certificate, dated the Effective Date and signed by a
Responsible Officer of the Borrower confirming compliance with the conditions
precedent set forth in subparagraphs (g), (h), (i) and (j) of this Section 4.01 and
in subparagraphs (b), (c) and (d) of Section 4.02; and




     (v) such other documents, opinions, certificates and agreements in connection
with the Revolving Credit Facility, in form and substance satisfactory to the
Administrative Agent, as it shall reasonably request.




     (f) The Borrower shall have paid all Fees and other amounts due and payable to the
Administrative Agent or any Lender on or prior to the Effective Date.




     (g) No Material Adverse Change shall have occurred since August 31, 2006.




     (h) The Administrative Agent shall have received evidence satisfactory to it that the
Borrower and the Subsidiaries have obtained all governmental (whether domestic or foreign),
shareholder and third party consents and approvals and expiration of all applicable waiting
or appeal periods necessary or, in the opinion of the Administrative Agent, appropriate in
connection with the Revolving Credit Facility and the pledge of the Collateral for the
Revolving Credit Facility without any action being taken that could restrain, prevent or
impose any material adverse condition on the Borrower, the Subsidiaries (or any of them) or
the transactions contemplated hereby or that could seek or threaten any of the foregoing,
and no law or regulation or condition shall be applicable which in the judgment of the
Administrative Agent could have such effect.




     (i) There shall not exist any action, suit, investigation or proceeding pending or
threatened in any court or before any arbitrator or Governmental Authority that purports to
adversely affect the Revolving Credit Facility or that could have a Material Adverse Effect.



 









 






     (j) None of the Borrower and the Subsidiaries shall be in violation of any law, rule or
regulation, or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.




     (k) The Borrower shall have repaid in full (or shall repay in full substantially
contemporaneously with the initial extension of credit hereunder) all amounts outstanding
under the Existing Agreement, including principal, all accrued interest and fees including
Letter of Credit Fees) payable thereunder (whether or not due and owing).




     (l) Each Lender which is not already a party to the Collateral Agency Agreement shall
have executed a counterpart thereof and each Existing Lender which is not a Lender hereunder
shall have executed a consent hereto in form reasonably satisfactory to the Administrative
Agent.



     SECTION 4.02. All Credit Events. The obligations of the Lenders to make Loans
hereunder, and the obligation of the Issuing Bank to issue or amend Letters of Credit hereunder,
are subject to the satisfaction of the conditions that on the date of each Borrowing and on the
date of issuance of each Letter of Credit:




     (a) The Administrative Agent shall have received a notice of such Borrowing as required
by Section 2.04 or Section 2.11, or a notice requesting the issuance of such Letter of
Credit as required by Section 2.23(c), or a notice requesting a Swingline Borrowing as
required by Section 2.22(a), as applicable.




     (b) The representations and warranties set forth in Article III and the representations
and warranties of the Borrower and the Subsidiaries set forth in the other Loan Documents
shall be true and correct in all material respects on and as of the date of such Borrowing
or the date of the issuance of such Letter of Credit with the same effect as though made on
and as of such date, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties shall be true
and correct in all material respects on and as of such earlier date).




     (c) At the time of and immediately after such Borrowing or the issuance of such Letter
of Credit, the aggregate outstanding Dollar Amount of the Loans of each Class, the Swingline
Exposure and the Letter of Credit Exposure shall not exceed the limitations set forth in
Section 2.02.




     (d) At the time of and immediately after such Borrowing or the issuance or amendment of
such Letter of Credit, no Default or Event of Default shall have occurred and be continuing.


Each Borrowing hereunder and each issuance or amendment of a Letter of Credit hereunder shall be
deemed to constitute a representation and warranty by the Borrowers on the date of such Borrowing
or issuance of such Letter of Credit as to the matters specified in paragraphs (b), (c) and (d) of
this Section 4.02. For purposes of this Section 4.02, a “Borrowing” does not include a conversion
or continuation of a previously outstanding Borrowing pursuant to Section 2.11.




 









 








ARTICLE V




AFFIRMATIVE COVENANTS




     Each of the Borrowers covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the Loans, together with
interest, Fees and all other Obligations have been paid in full, all Letters of Credit have been
canceled or have expired, and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing:



     SECTION 5.01. Existence, Businesses and Properties.




     (a) The Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Sections 6.05(a) and (b).




     (b) The Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to obtain, preserve, renew, extend and keep in full force and
effect the rights, leases, privileges, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks, trade names and all other intellectual property material to
the conduct of its business; maintain and operate such business in substantially the manner
in which it is presently conducted and operated; comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building, ordinance, code or
approval or any building permits or any restrictions of record or agreements affecting real
property and excluding environmental laws, which are subject to the provisions of Section
5.11) and judgments, writs, injunctions, decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and preserve all
property material to the conduct of such business and keep such property in good repair,
working order and condition (subject to ordinary wear and tear) and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times.



     SECTION 5.02. Insurance.




     (a) The Borrower will, and will cause each of the Subsidiaries to, keep its insurable
properties fully insured at all times by financially sound and reputable insurers; such
insurance to include fire and other risks insured against by extended coverage, public and
product liability insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned, occupied or
controlled by it and business interruption insurance, and maintain such other insurance as
may be required by law and as is customary in the industry.




     (b) The Borrower will, and will cause each of the Subsidiaries to, on the request of
the Administrative Agent, deliver original or certified copies of all insurance policies to
the Administrative Agent.



 









 





     SECTION 5.03. Obligations and Taxes. The Borrower will, and will cause each of the
Subsidiaries to, pay all of its Indebtedness and other obligations promptly and in accordance with
their terms and pay and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or in respect of its property, before the
same shall become delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might give rise to a Lien upon such properties or any part
thereof, provided, that, such payment and discharge shall not be required with
respect to any such tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings diligently pursued and the
Borrower shall have set aside on its books adequate reserves in accordance with GAAP with respect
thereto and such contest operates to suspend collection of the contested obligation, tax,
assessment or charge and enforcement of a Lien.



     SECTION 5.04. Financial Statements, Reports, etc. The Borrower will furnish to the
Administrative Agent and each Lender:




     (a) as soon as available, and in any event within 105 days after the end of each Fiscal
Year (i) its consolidated balance sheet and related consolidated statements of operations
and cash flows, showing the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of the close of such Fiscal Year and the consolidated results
of their operations and cash flows during such year, in each case setting forth in
comparative form the figures for the preceding Fiscal Year, with all of the consolidated
statements having been audited by a nationally recognized independent registered public
accounting firm and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such financial statements fairly
present the consolidated financial position and consolidated results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently
applied and (ii) copies of its Annual Report on Form 10-K prepared in compliance with the
requirements therefor and filed with the SEC;




     (b) as soon as available, and in any event within 45 days after the end of each of the
first three fiscal quarters of each Fiscal Year (i) its consolidated balance sheet and
related consolidated statements of operations and cash flows, showing the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of the close of such
fiscal quarter, the consolidated results of their operations and cash flows during such
fiscal quarter and the then elapsed portion of such Fiscal Year and the consolidated cash
flows for the then elapsed portion of such Fiscal Year, all certified by one of its
Financial Officers as fairly presenting the consolidated financial position and consolidated
results of operations and cash flows of the Borrower and its Consolidated Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments and
(ii) copies of its Quarterly Report on form 10-Q prepared in compliance with the
requirements therefore and filed with the SEC;




     (c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, an Officer’s Certificate of the Borrower certifying that no Default or Event of
Default has occurred or, if such a Default or Event of Default has occurred, specifying



 









 







the nature and extent thereof and any corrective action taken or proposed to be taken
with respect thereto;




     (d) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer of the Borrower, substantially in the form of
Exhibit F hereto, (i) setting forth computations in reasonable detail satisfactory
to the Administrative Agent demonstrating compliance with the covenants contained in Section
6.12, (ii) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating the Consolidated Leverage Ratio, and (iii) stating
whether, since the date of the most recent Required Financial Statements previously
delivered, there has been any material change in the generally accepted accounting
principles applied in the preparation of the Borrower’s financial statements and, if so,
describing such change;




     (e) promptly upon their becoming publicly available, copies of all (i) financial
statements, reports, notices and proxy statements sent or made available by the Borrower to
all of its security holders in compliance with the Exchange Act or any comparable Federal or
state laws relating to the disclosure by any person of information to its security holders,
(ii) all regular and periodic reports and all registration statements and prospectuses filed
by the Borrower with any securities exchange or with the SEC, and (iii) all press releases
and other statements made available by the Borrower or its Subsidiaries concerning material
developments in the business of the Borrower or any of the Subsidiaries, as the case may be;




     (f) promptly upon completion, but in any event not later than 60 days after the
commencement of each Fiscal Year, a copy of projections by the Borrower of its consolidated
balance sheet and related consolidated statements of operations and cash flows for such
Fiscal Year (including all material assumptions to such projections) and a budget for such
Fiscal Year, all in form customarily prepared by the Borrower’s management, such projected
financial statements to be accompanied by a certificate of a Financial Officer to the effect
that such projected financial statements have been prepared in good faith, based on
assumptions that the Borrower believes to be reasonable and based on the best information
available to the Borrower and that such Financial Officer has no reason to believe they are
misleading, in any material respect in light of the circumstances existing at the time of
preparation thereof;




     (g) as soon as available, and in any event within 15 days of receipt, any final
management letter issued or provided by the auditors of the Borrower or any Subsidiary; and




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



     SECTION 5.05. Other Information. (a) The Borrower will furnish to the Administrative
Agent prompt written notice of the following:



 









 






     (i) any Default or Event of Default, specifying the nature and extent thereof
and the corrective action (if any) proposed to be taken with respect thereto;




     (ii) the filing or commencement of, or any threat or notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or in
equity or by or before any Governmental Authority, against or affecting the Borrower
or any of the Subsidiaries (A) which, if adversely determined, could individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect or (B)
which involves a claim or series of related claims against the Borrower or any
Subsidiary in excess of $2,000,000; provided, that, the Borrower is
not required to give written notice of claims fully covered by third party
insurance;




     (iii) all matters materially affecting the value, enforceability or
collectibility of any material portion of its assets, including changes to
significant contracts, schedules of equipment, changes of significant equipment or
real property, the reclamation or repossession of, or the return to the Borrower or
any of the Subsidiaries of, a material amount of goods and material claims or
disputes asserted by any customer or other obligor, which matters could have a
Material Adverse Effect;




     (iv) any material adverse change in the relationship between any of the
Borrowers and the Subsidiaries, on the one hand, and any of its respective
suppliers, licensors or customers, on the other hand, which could reasonably be
expected to have a Material Adverse Effect;




     (v) all proposed amendments to any material agreement relating to Indebtedness
to which the Borrower or any Subsidiary is a party; and




     (vi) any development that individually or in the aggregate has resulted in, or
could reasonably be expected to have, a Material Adverse Effect.




     (b) Immediately upon receipt by the Borrower, the Borrower shall provide the
Administrative Agent and the Lenders with copies of all notices (including notices of
default), statements and financial information received from any other creditor or lessor
with respect to any item of Indebtedness which, if not paid, could give rise to an Event of
Default or the repossession of material property from the Borrower or any of the
Subsidiaries.




     (c) Any notification required by this Section 5.05 shall be accompanied by a
certificate of a Financial Officer of the Borrower setting forth the details of the
specified events and the action which the Borrower proposes to take with respect thereto.



     SECTION 5.06. ERISA.




     (a) The Borrower will, and will cause each of the Subsidiaries to, comply in all
material respects with the applicable provisions of ERISA and the Code.



 









 






     (b) The Borrower will promptly give notice to the Administrative Agent and each Lender
of the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, a failure to make any required contribution
to a Plan, any filing by the Borrower with the PBGC of a notice of intent to terminate a
Plan, any receipt by the Borrower of notice from the PBGC of the intention of the PBGC to
terminate a Plan or appoint a trustee to administer a Plan, any Lien in favor of the PBGC or
a Plan, or any withdrawal from, or the termination, reorganization or insolvency (within the
meaning of such terms as used in ERISA) of, any Multiemployer Plan; or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, reorganization or insolvency (within the meaning of such terms as used in
ERISA) of, any Single Employer Plan or Multiemployer Plan.



     SECTION 5.07. Maintaining Records, Access to Properties and Inspections. The
Borrower will, and will cause each of the Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with GAAP and all requirements of law are
made of all dealings and transactions in relation to its business and activities. The Borrower
will, and will cause each of the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records and the properties of
the Borrower or any Subsidiary at reasonable times and as often as reasonably requested, and to
make extracts from and copies of such financial records, and permit any representatives designated
by the Administrative Agent or any Lender to discuss the affairs, finances and condition of the
Borrower or any Subsidiary with the officers thereof and independent accountants therefor (with
representatives of the Borrower present unless an Event of Default or Default has occurred and is
continuing).



     SECTION 5.08. Use of Proceeds. The Borrowers will use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in Section 3.13.



     SECTION 5.09. Interest Rate Protection Agreements. The Borrower will notify the
Administrative Agent if the Borrower enters into any Interest Rate Protection Agreement with any
person other than a Lender.



     SECTION 5.10. Fiscal Year. The Borrower will cause its Fiscal Year to end on August
31 in each year. The Borrower will cause each Subsidiary to cause their respective Fiscal Years to
end on the date in each year that is the date of such Subsidiaries’ Fiscal Year end in effect as of
the Effective Date.



     SECTION 5.11. Compliance with Environmental Laws; Preparation of Environmental
Reports.




     (a) The Borrower will, and will cause each Subsidiary to, comply, and use its best
efforts to cause all lessees and other persons occupying the properties owned or leased by
the Borrower and the Subsidiaries to comply, in all material respects with all environmental
laws and environmental permits applicable to its operations and properties



 









 







except to the extent that the failure to comply therewith could not reasonably be
expected to result in liability in excess of $2,000,000; obtain and renew all material
environmental permits necessary for its operations and properties; and conduct any remedial
action required under, and in accordance with, environmental laws, except to the extent
that: (i) the cost of such remedial action could not reasonably be expected to exceed
$2,000,000; or (ii) the necessity of any such remedial action is being contested in good
faith by appropriate proceedings timely instituted and diligently pursued and in the manner
provided by applicable law.




     (b) If a Default or Event of Default caused by reason of a breach of Section 3.17 or
5.11(a) shall have occurred and be continuing, or if the laws of the United States or any
state in which the Borrower or any of the Subsidiaries leases or owns property provide that
a Lien upon the property of the Borrower or any of the Subsidiaries may be obtained for the
removal of Hazardous Materials which have been released, at the request of the Required
Lenders through the Administrative Agent, the Borrower will provide to the Lenders within 45
days after such request, at the expense of the Borrower, an environmental site assessment
report for the properties which are the subject of such Default or Event of Default prepared
by an environmental consulting firm reasonably acceptable to the Administrative Agent and
indicating the presence or absence of Hazardous Materials and the estimated cost of any
compliance or remedial action in connection with such properties. To the extent any such
Hazardous Materials are located therein or thereunder that either (i) subjects a property to
Lien or (ii) requires removal to safeguard the health of any person, the Borrower shall, and
shall cause each of the Subsidiaries to, remove, or cause to be removed, such Lien and such
Hazardous Materials at the Borrower’s expense.



     SECTION 5.12. Subsidiaries. The Borrower shall cause each and every Domestic
Subsidiary that is organized or acquired subsequent to the Effective Date to execute and deliver a
Supplemental Agreement immediately upon and contemporaneously with their organization or
acquisition. Nothing in this Section 5.12 shall be deemed to imply that any such acquisition or
organization of a Subsidiary is permitted under this Agreement.



     SECTION 5.13. Further Assurances. Within 10 days after a request by the
Administrative Agent, the Collateral Agent or the Required Lenders, the Borrower will, and will
cause each Subsidiary to, execute any and all further documents, financing statements, agreements
and instruments, and take all further action (including filing Uniform Commercial Code and other
financing statements that may be required under applicable law, or that the Required Lenders, the
Administrative Agent or the Collateral Agent may reasonably request), in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant, maintain, preserve, protect
and perfect the validity and first priority of the security interests created or intended to be
created by the Collateral Documents. Such security interests and Liens will be created under the
Collateral Documents and other security agreements, instruments and documents in form and substance
satisfactory to the Administrative Agent and the Collateral Agent, and the Borrower shall deliver
or cause to be delivered to the Lenders all such instruments and documents (including legal
opinions and lien searches) as the Administrative Agent and the Collateral Agent shall reasonably
request to evidence compliance with this Section 5.13. The Borrower agrees to provide such
evidence as the Administrative Agent and



 









 







the Collateral Agent shall reasonably request as to the perfection and priority status of each
such security interest and Lien.



ARTICLE VI




NEGATIVE COVENANTS




     Each of the Borrowers covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the Loans, together with
interest, Fees and all other Obligations have been paid in full, all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing:



     SECTION 6.01. Indebtedness. The Borrower will not, and will not cause or permit any
of the Subsidiaries to, incur, create, issue, assume, guarantee or permit to exist any Indebtedness
or Disqualified Stock, except:




     (a) Indebtedness or Disqualified Stock existing on the Effective Date that is set forth
in Schedule 6.01 (but not any extension, renewal, increase or refinancing thereof,
other than the refinancing of Indebtedness permitted under Section 6.01(d) if such
refinancing is within the terms and limits of Section 6.01(d));




     (b) Indebtedness created and evidenced by the Loan Documents;




     (c) Intercompany Indebtedness existing on the Effective Date that is set forth on
Schedule 6.01, or arising thereafter; provided, that in the case of
Intercompany Indebtedness existing on the Effective Date, all such Indebtedness is listed on
Schedule 6.01; provided further, that, the aggregate
Intercompany Indebtedness of Foreign Subsidiaries to the Borrower or any Domestic Subsidiary
shall not exceed $60,000,000 at any time;




     (d) Indebtedness for borrowed money of Foreign Subsidiaries to unrelated third parties
(including guarantees with respect thereto by the Borrower or any other Subsidiaries, so
long as such guarantees are unsecured; provided, that such guarantees may be
secured by Liens on the assets (other than Capital Stock) of the applicable Foreign
Subsidiary)) that does not exceed $40,000,000 in an aggregate amount outstanding at any
time;




     (e) Indebtedness of the Borrower or any Wholly Owned Subsidiary that is a Domestic
Subsidiary to Foreign Subsidiaries; provided, that such Indebtedness is
unsecured and is created and outstanding under an agreement or instrument pursuant to which
such Indebtedness is subordinated to the Obligations secured under the Collateral Documents
at least to the extent provided in the instrument attached hereto as Exhibit I;




     (f) Indebtedness owed to any person providing worker’s compensation, health, disability
or other employee benefits, property, casualty or liability insurance to the Borrower or any
Subsidiary, so long as such Indebtedness shall not be in excess of the amount of the unpaid
cost or estimated or negotiated amounts of, and shall be incurred



 









 







only to defer the cost or estimated or negotiated amounts of, such insurance for the
applicable insurance period for which such Indebtedness is incurred and such Indebtedness
shall be outstanding only during such period;




     (g) Indebtedness (including Capital Lease Obligations and Purchase Money Indebtedness)
issued or assumed as the deferred purchase price of property or services (excluding trade
accounts payable arising in the ordinary course of business and paid in accordance with
customary trade terms) so long as such Indebtedness does not exceed 100% of the lesser of
the cost or fair market value of such properties or services;




     (h) Interest Rate Protection Agreements;




     (i) Indebtedness for advances permitted by Section 6.04(d);




     (j) Indebtedness issued to a seller or assumed in connection with a Permitted
Acquisition pursuant to Section 6.04(g) in an aggregate outstanding principal Dollar Amount
that at no time exceeds $60,000,000; provided, that any such Indebtedness is
not secured by a Lien on any assets other than assets acquired in any such Permitted
Acquisition, and any Indebtedness issued or assumed pursuant to this Section 6.01(j) may not
be refinanced in any manner except with Revolving Loans;




     (k) Indebtedness from one Wholly Owned Foreign Subsidiary to another Wholly Owned
Foreign Subsidiary; provided, that, such Indebtedness (i) is incurred in
good faith, in the ordinary course of business, and for a legitimate company purpose, (ii)
is unsecured and (iii) is, by its terms, not assignable, transferable, sellable, or
otherwise pledgeable to any third party;




     (l) Indebtedness of Foreign Subsidiaries pursuant to foreign currency hedge contracts
entered into in the ordinary course of business;




     (m) Indebtedness created pursuant to the Senior Note Purchase Agreement and evidenced
by the Senior Notes;




     (n) Indebtedness of the Borrower or any of its Subsidiaries incurred in connection with
the issuance of Bank Guarantees; provided, that the aggregate principal
Dollar Amount of such Bank Guarantees does not exceed $30,000,000 at any one time; and




     (o) Indebtedness of Foreign Subsidiaries (other than Wholly Owned Foreign Subsidiaries)
to Wholly Owned Foreign Subsidiaries in an aggregate outstanding principal Dollar Amount
that at no time exceeds $5,000,000; provided, that, such Indebtedness (i) is
incurred in good faith, in the ordinary course of business, and for a legitimate company
purpose, (ii) is unsecured and (iii) is, by its terms, not assignable, transferable,
sellable, or otherwise pledgeable to any third party.



     SECTION 6.02. Negative Pledge. The Borrower will not, and will not cause or permit
any of the Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or
assets (including Capital Stock or other securities of any Subsidiary or other person) now owned



 









 







or hereafter acquired by it or on any income or revenues or rights in respect of any thereof,
except:




     (a) Liens existing on the Effective Date and that are set forth in Schedule
6.02, provided that such Liens secure only those obligations which they secure on the
Effective Date;




     (b) Liens in favor of the Collateral Agent on behalf of the Secured Parties created by
the Collateral Documents securing the Obligations and the Senior Notes;




     (c) Liens for taxes not yet due or which are being contested in compliance with Section
5.03;




     (d) carriers’, warehousemen’s, mechanic’s, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business and securing obligations that are not due
or which are being contested in compliance with Section 5.03;




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




     (f) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;




     (g) zoning restrictions, easements, rights-of-way and restrictions on use of real
property existing as of the Effective Date or incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and do not materially detract from
the value of the property subject thereto or interfere with the ordinary conduct of the
business of the Borrower or any of the Subsidiaries;




     (h) unperfected Liens arising by operation of law under Article 2 of the Uniform
Commercial Code in favor of unpaid sellers or prepaying buyers of goods relating, to amounts
that are not past due in accordance with their respective terms of sale;




     (i) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements, constructed) by the Borrower
or any Subsidiary; provided, that (i) such security interests secure
Indebtedness permitted by Section 6.01(g), (ii) such security interests are incurred, and
the Indebtedness secured thereby is created, within 90 days after such acquisition (or
completion of construction), and (iii) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary;




     (j) leases or subleases which are entered into in the ordinary course of the business
and which do not interfere in any material respect with the ordinary conduct of the business
of the Borrower or its Subsidiaries;



 









 






     (k) Liens existing on any asset (other than Capital Stock) acquired in a Permitted
Acquisition or on the assets (other than Capital Stock) of any person acquired in a
Permitted Acquisition; provided, that, (i) the Indebtedness secured by any
such Lien is permitted under Section 6.01(j), (ii) any such Lien is created prior to or at
the time of completion of the Permitted Acquisition, (iii) the Indebtedness secured thereby
does not exceed 100% of the lesser of the cost or the fair market value of the asset
acquired at the time of the Permitted Acquisition and (iv) such Liens are confined solely to
the asset acquired (or assets of the person acquired) and do not apply to any other asset of
the Borrower or any Subsidiary; and




     (l) Liens on assets (other than Capital Stock) of Foreign Subsidiaries securing
Indebtedness or guarantees permitted under Section 6.01(d).



     SECTION 6.03. Certain Amendments. The Borrower will not, and will not cause or
permit any of the Subsidiaries to, enter into any amendment, modification or waiver of (a) the
Certificate of Incorporation or By-laws or comparable governing instruments of the Borrower or any
of the Subsidiaries as in effect on the Effective Date, other than amendments, modifications and
waivers which are not, individually or in the aggregate, adverse in any material respect to the
rights or interests of the Lenders, or (b) the Senior Note Purchase Agreement, in each case without
the written consent of the Lenders required under the Collateral Agency Agreement.



     SECTION 6.04. Investments, Loans and Advances. The Borrower will not, and will not
cause or permit any of the Subsidiaries to, purchase, hold or acquire any assets constituting all
or substantially all of, or a business unit of, any other person, Capital Stock, evidences of
indebtedness or other securities of, make or permit to exist any loans, extensions of credit or
advances to, make guarantees in favor of, or make or permit to exist any other investment, capital
contribution or other interest in, any other person, except:




     (a) (i) equity investments existing on the Effective Date by the Borrower in the
Subsidiaries listed on Schedule 6.04, (ii) contributions of equity made after the
Effective Date to Wholly Owned Subsidiaries that are Domestic Subsidiaries, (iii)
contributions of equity made after the Effective Date to (A) Subsidiaries of the Borrower
and (B) entities that are organized under the laws of the United States of America, any
state thereof or the District of Columbia that are not Controlled by the Borrower that do
not (together with investments made pursuant to Section 6.04(k)) exceed $30,000,000 in the
aggregate during any Fiscal Year; provided that contributions of equity made to in
accordance with clause (a)(iii)(B) hereof shall not exceed $5,000,000 during any Fiscal
Year, and (iv) treasury stock held by the Borrower and its Subsidiaries on the Effective
Date or acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06;




     (b) loans and advances made after the Effective Date by the Borrower or any Wholly
Owned Subsidiary to any Subsidiary or the Borrower; provided, that, any such
loan or advance is otherwise permitted pursuant to Section 6.01(c);




     (c) trade accounts receivable (and related notes and instruments) arising in the
ordinary course of business consistent with past practices;



 









 






     (d) (i) advances to employees for home-swing loans and moving and travel expenses in
the ordinary course of business consistent with past practices, and guarantees by the
Borrower in connection with home-swing loans of third parties to employees and (ii) loans to
executive officers of the Borrower to assist in the payment of taxes resulting from an
election made under Section 83(b) of the Code;




     (e) Cash Equivalents;




     (f) securities held by the Borrower or any of the Subsidiaries prior to the Effective
Date and listed in Schedule 6.04;




     (g) in connection with one or more non-hostile acquisitions by the Borrower or any
Restricted Subsidiary, any assets or Capital Stock (other than Margin Stock) of any other
person (such assets, in the case of an asset acquisition, or person, in the case of the
acquisition of Capital Stock, is referred to herein as the “Acquired Entity”) so
long as (A) in the case of an acquisition of assets, such assets are to be used, and in the
case of an acquisition of Capital Stock, the person so acquired is engaged, in a business
substantially similar or related to the businesses of the Borrower on the date hereof, (B)
the Borrower shall have provided the Lenders with such information as the Lenders shall
reasonably request, (C) on the date of such acquisition and immediately after giving effect
thereto, the representations and warranties set forth in Article III shall be true and
correct in all material respects with the same effect as though made on and as of such date
and no Default or Event of Default shall exist, (D) after giving effect to such Permitted
Acquisition (as defined below), the Borrower shall have delivered to the Administrative
Agent calculations satisfactory to the Administrative Agent demonstrating that on a pro
forma basis the Borrower is in compliance with Sections 6.12(a) and (b), (E) in the case of
an acquisition of Capital Stock of a person, then simultaneously with any such acquisition,
the Collateral Agent for the benefit of the Secured Parties shall be granted (i) in the case
of a person organized under the laws of the United States, any State thereof or the District
of Columbia, a first priority security interest in all of such Capital Stock acquired by the
Borrower or any Domestic Subsidiary as part of such acquisition, and (ii) in the case of a
person organized under the laws of a jurisdiction other than the United States, any State
thereof or the District of Columbia, that will be acquired directly by the Borrower or a
Domestic Subsidiary, a first priority security interest in 65% of all of the Capital Stock
of the person so acquired, and in all cases the Borrower shall, and shall cause any
applicable Subsidiary to, execute any documents (including a Supplemental Agreement,
financing statements and other Collateral Documents) and take all action (including filing
financing statements and obtaining and providing consents, and legal opinions) that may be
required under applicable law, or that the Administrative Agent or the Collateral Agent may
request, in order to grant, preserve, protect and perfect such security interest, (F) in the
case of an acquisition of Capital Stock of a person, the Borrower acquires directly or
indirectly 100% of the Capital Stock of such person; and (G) if immediately prior, and after
giving effect, to such acquisition the Consolidated Leverage Ratio is greater than 3.25 to
1.00, the total aggregate consideration for all such acquisitions in any Fiscal Year shall
not exceed $50,000,000 (such consideration to include, without limitation, the amount of
Indebtedness incurred pursuant thereto as permitted by Section 6.01(j)) (any acquisition
satisfying each of the criteria set forth in



 









 







the preceding clauses (A) through (G) being referred to herein as a “Permitted
Acquisition”);




     (h) loans and advances made after the Effective Date by (i) any Foreign Subsidiaries to
the Borrower or any Wholly Owned Subsidiary that is a Domestic Subsidiary that are permitted
pursuant to Section 6.01(e) and (ii) any Wholly Owned Foreign Subsidiary to another Wholly
Owned Foreign Subsidiary;




     (i) loans to any Affiliate of the Borrower or its Subsidiaries; provided,
that, such loans do not exceed an aggregate amount equal to $5,000,000 at any one
time outstanding;




     (j) a contribution of assets to the Subsidiary Borrower or any Wholly Owned Subsidiary
that is a Domestic Subsidiary to the extent permitted by Section 6.05(g);




     (k) acquisitions of assets or Capital Stock which would constitute a Permitted
Acquisition but for the fact that such acquisition is made by a Subsidiary which is not a
Restricted Subsidiary and/or the condition set forth in Section 6.04(g)(F) is not satisfied,
in an aggregate amount which, together with investments made pursuant to Section
6.04(a)(iii), are for aggregate consideration which does not exceed $30,000,000 in the
aggregate during any Fiscal Year; and




     (l) acquisitions of assets or Capital Stock made by Subsidiaries which are not
Restricted Subsidiaries out of the proceeds of investments in such Persons not prohibited
hereby so long as (A) such acquisition is non-hostile, (B) in the case of an acquisition of
assets, such assets are to be used, and in the case of an acquisition of Capital Stock, the
person so acquired is engaged, in a business substantially similar or related to the
businesses of the Borrower on the date hereof, (C) the Borrower shall have provided the
Lenders with such information as the Lenders shall reasonably request, (D) on the date of
such acquisition and immediately after giving effect thereto, the representations and
warranties set forth in Article III shall be true and correct in all material respects with
the same effect as though made on and as of such date and no Default or Event of Default
shall exist, and (E) after giving effect to such acquisition, the Borrower shall have
delivered to the Administrative Agent calculations satisfactory to the Administrative Agent
demonstrating that on a pro forma basis the Borrower is in compliance with Sections 6.12(a)
and (b).



     SECTION 6.05. Mergers, Consolidations, Dispositions and Acquisitions. The Borrower
will not, and will not cause or permit any of the Subsidiaries to, (i) merge into or consolidate
with any other person, (ii) permit any other person to merge into or consolidate with it, (iii)
sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions)
all or any substantial part of its assets (whether now owned or hereafter acquired) (iv) issue,
sell, transfer, lease or otherwise dispose of any Capital Stock of any Subsidiary to, or permit any
Subsidiary to accept any capital contribution from, any person, or (v) purchase, lease or acquire
(in one transaction or a series of transactions) all or any substantial part of the assets of any
other person, except that:



 









 






     (a) any Foreign Subsidiary may be merged, liquidated or consolidated with or into
another Foreign Subsidiary if, immediately after giving effect to such transaction, no
condition or event shall exist which constitutes a Default or Event of Default;




     (b) any Subsidiary may be merged, liquidated or consolidated with or into the Borrower,
any Guarantor or any person of which 90% of the Capital Stock of such person is owned,
Controlled or held by the Borrower or any Guarantor if, immediately after giving effect to
such transaction, no condition or event shall exist which constitutes a Default or Event of
Default and the Borrower or such Guarantor or such person described in this clause (b), as
applicable, is the surviving entity;




     (c) the Borrower and any of the Subsidiaries may sell inventory in the ordinary course
of business for fair value and on an arm’s-length basis (and as may be permitted pursuant to
Section 6.10);




     (d) the Borrower and any of the Subsidiaries may sell damaged, worn out or obsolete
tangible assets or scrap in the ordinary course of business and in a commercially reasonable
manner;




     (e) this Section 6.05 shall not be deemed violated by any casualty or condemnation
affecting assets of the Borrower or any Subsidiary;




     (f) the Borrower and any of the Subsidiaries may sell, lease, transfer, assign or
dispose of assets to any other person to the extent that the aggregate Net Cash Proceeds
from such sale, lease, transfer, assignment or other disposition to such person do not
exceed in the aggregate in any Fiscal Year the greater of: (i) $50,000,000, or (ii) 10% of
the Consolidated Assets of the Borrower and its Consolidated Subsidiaries as of the end of
the preceding Fiscal Year;




     (g) the Borrower or any of its Subsidiaries may transfer assets to the Borrower or any
Wholly Owned Subsidiary which is a Domestic Subsidiary;




     (h) the Borrower or a Restricted Subsidiary may make Permitted Acquisitions to the
extent permitted by Section 6.04(g);




     (i) the Borrower may make equity contributions to Subsidiaries to the extent permitted
by Sections 6.04(a)(ii) and 6.04(a)(iii);




     (j) the Borrower and the Subsidiaries may acquire inventory, property, plant, equipment
or other assets of any person if the assets so acquired do not constitute a business unit of
such person;




     (k) the Borrower and any applicable Subsidiary may acquire the Capital Stock of the
Borrower or the Subsidiaries to the extent permitted by Section 6.06(a);




     (l) a non-Wholly Owned Foreign Subsidiary may issue Capital Stock to third parties as
long as (i) the proceeds thereof are used for working capital purposes of such Subsidiary or
to finance the acquisition of capital assets in the ordinary course of



 









 







business; and (ii) the issuer remains a majority-owned Subsidiary of the Borrower after
the issuance of such Capital Stock;




     (m) the Borrower and its Subsidiaries may dispose of assets in sale lease back
transactions to the extent the aggregate Net Cash Proceeds thereof do not exceed
$50,000,000;




     (n) the Borrower and any of its Subsidiaries may transfer the stock of any Subsidiary
to any Wholly Owned Subsidiary if, immediately after giving effect to such transfer, no
condition or event shall exist which constitutes a Default or Event of Default; provided,
however, that the stock of a Domestic Subsidiary may not be transferred to a Foreign
Subsidiary pursuant to this subsection; and




     (o) the Borrower and its Subsidiaries may consummate any Romaco Sale.



     SECTION 6.06. Dividends, Distributions and Other Restricted Payments. The Borrower
will not, and will not cause or permit any of the Subsidiaries to, (i) declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital or otherwise and
including any tax sharing or indemnification payments), whether in cash, property, securities or a
combination thereof, with respect to any Capital Stock of the Borrower or any of the Subsidiaries
(other than a dividend or distribution payable solely in common shares of the Borrower), (ii)
except for Capital Stock reacquired by the Borrower in connection with the exercise of stock
options granted pursuant to employee or director stock option plans of the Borrower or in
connection with withholding taxes due under any stock plan in which employees or directors
participate, directly or indirectly redeem, purchase, retire or otherwise acquire for value, any
Capital Stock of the Borrower or any of the Subsidiaries, whether such acquisition is made at the
option of the Borrower or such Subsidiary or at the option of the holder of such Capital Stock and
whether or not such acquisition is required under the terms and conditions applicable to such
Capital Stock or set aside any amount for any such purpose, or (iii) directly or indirectly redeem,
purchase, prepay, retire, defease or otherwise acquire for value any Indebtedness (other than
Obligations), whether such acquisition is made at the option of the Borrower or such Subsidiary or
at the option of the holder of such Indebtedness and whether or not such acquisition is required
under the terms and conditions applicable to such Indebtedness, except for repayments of principal
of any such Indebtedness in accordance with the scheduled amortization thereof; provided,
that: (i) any Subsidiary may declare and pay dividends or make other distributions to the
Borrower or any Wholly Owned Subsidiary, or, in an amount not to exceed $5,000,000 in each Fiscal
Year, to any other person, (ii) as long as no Event of Default then exists, the Borrower may pay
cash dividends to the holders of its Capital Stock in each Fiscal Year of the Borrower that do not
exceed $10,000,000 plus the Carry Over Amount, if any, for that Fiscal Year, (x) the Borrower may
purchase or redeem Capital Stock of the Borrower so long as no Event of Default has occurred and is
continuing on the date of such purchase or redemption, (y) the Borrower may prepay the Senior Notes
so long as no Event of Default has occurred and is continuing on the date of such prepayment, and
(z) as a condition to any payments made pursuant to clauses (w), (x) or (y) preceding, after giving
effect to such payment, purchase, redemption or prepayment, as the case may be, the Borrower is in
compliance on a pro forma basis with the covenants contained in this Article VI as of the date of
such payment or prepayment, and the Borrower shall, prior to the date of such payment or prepayment
(other than



 









 







with respect to the payment of cash dividends and the repurchase or redemption of Capital
Stock), as the case may be, deliver to each Lender projections (certified in accordance with
Section 5.04(g)) demonstrating such compliance.



     SECTION 6.07. Impairment of Security Interests. The Borrower will not, and will not
permit any of the Subsidiaries to, take or omit to take any action, which action or omission might
or would have the result of materially impairing the security interests in favor of the Collateral
Agent on behalf of the Secured Parties with respect to the Collateral, and the Borrower will not,
and will not permit any of the Subsidiaries to, grant to any person (other than the Collateral
Agent on behalf of the Secured Parties pursuant to the Loan Documents) any interest whatsoever in
the Collateral.



     SECTION 6.08. Limitation on Restrictions on Subsidiary Dividends, etc. The Borrower
will not, and will not cause or permit any of the Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction
or any restriction in its articles of incorporation (except restrictions imposed by law), By-laws
or comparable governing instruments on the ability of any Subsidiary to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock, or pay any indebtedness owed to the
Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary or (c)
except in agreements entered into in connection with a transaction permitted by Section 6.02(i),
transfer any of its properties or assets to the Borrower or any Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) customary non-assignment provisions
in any lease governing a leasehold interest or in any other contract governing a contract right
which in the ordinary course of business is not assignable or (ii) this Agreement and the
Collateral Documents.



     SECTION 6.09. No Other Negative Pledges. The Borrower will not, and will not cause
or permit any of the Subsidiaries to, directly or indirectly, enter into any agreement prohibiting
the creation or assumption of any Lien upon the properties or assets of the Borrower or any
Subsidiary, whether now owned or hereafter acquired, or requiring an obligation to be secured if
some other obligation is secured, except for this Agreement and except in agreements entered into
in connection with a transaction permitted by Section 6.02(i) and Section 6.02(l).



     SECTION 6.10. Transactions with Affiliates and Shareholders. The Borrower will not,
and will not cause or permit any of the Subsidiaries to, sell or transfer any property or assets
to, or purchase or acquire any property or assets from, or otherwise enter into or maintain any
other transactions with, any Affiliate of the Borrower or any of the Shareholders, except that so
long as no Default or Event of Default shall have occurred and be continuing, the Borrower or any
Subsidiary may enter into any of the foregoing transactions in the ordinary course of business at
prices and on terms and conditions that are (i) set forth in writing and (ii) as favorable to the
Borrower or such Subsidiary as would be obtainable at the time in a comparable transaction on an
arm’s-length basis from an unrelated third party. The provisions of this Section 6.10 shall not
prohibit (A) any payment expressly permitted under Section 6.04 or 6.06, (B) any transaction
entered into and maintained among the Borrower and any Subsidiary or among Subsidiaries and (C)
payment of compensation to employees and directors in the ordinary course of business.
Notwithstanding the foregoing, the Borrower and the Subsidiaries may engage in transactions on a
non-arm’s-length basis in connection with “beachhead” pricing in new markets as long as such



 









 







transactions are permitted by the rules and regulations regarding international transfer
pricing set forth in the Internal Revenue Code.



     SECTION 6.11. Business of Borrower and Subsidiaries. The Borrower will not, and will
not cause or permit any of the Subsidiaries to, engage at any time in any material line of business
which is substantially different from those lines of business carried on by the Company and the
Subsidiaries on the Effective Date and other business activities reasonably related or incidental
thereto. The Borrower will not permit the Subsidiary Borrower to cease to be a Wholly Owned
Subsidiary.



     SECTION 6.12. Financial Covenants.




     (a) Consolidated Interest Coverage Ratio. The Borrower will not permit the
Consolidated Interest Coverage Ratio to be less than 3.00 to 1.00 for any Reference Period
ending on or after the Effective Date.




     (b) Consolidated Leverage Ratio. The Borrower will not permit the Consolidated
Leverage Ratio to exceed 3.75 to 1.00 for any Reference Period ending on or after the
Effective Date.




     (c) Minimum Consolidated Net Worth. The Borrower will not permit its
Consolidated Net Worth as of the last day of any fiscal quarter of the Borrower to be less
than the Minimum Compliance Level at any time during the term of this Amended Agreement.
The “Minimum Compliance Level” shall initially be $250,000,000 as of November 30, 2006. The
Minimum Compliance Level shall be increased (any such increase being an “Increase”) as of
the last day of each fiscal quarter of the Borrower ending on or after February 28, 2007 by
an amount equal to the sum of (a) 50% of Consolidated Net Income (if positive) for such
fiscal quarter and (b) 100% of the Net Cash Proceeds of the issuance of any Capital Stock of
the Borrower or any Subsidiary; provided, that, nothing in this paragraph
shall be construed to permit the issuance of any such Capital Stock or Disqualified Stock.
It is understood that the first increase in the Minimum Compliance Level pursuant to the
foregoing provisions shall be determined as of the Borrower’s fiscal quarter ending February
28, 2006. The foregoing increases in the Minimum Compliance Level shall be fully cumulative
and no reduction in the Minimum Compliance Level shall be made to reflect negative
Consolidated Net Income for any period.



ARTICLE VII




EVENTS OF DEFAULT




     In case of the happening of any of the following events (each an “Event of Default”
and collectively the “Events of Default”):




     (a) default shall be made in the payment of any principal of any Loan or any
reimbursement obligation in respect of a Letter of Credit when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof
or by acceleration thereof or otherwise;



 









 






     (b) default shall be made in the payment of any interest on any Loan or any Fee or any
other amount (other than an amount referred to in paragraph (a) above) due under any Loan
Document, when and as the same shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;




     (c) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05, 5.08,
5.09, 5.10, 5.12, 5.13 or 5.14 or in Article VI;




     (d) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained herein and in any other Loan
Document (other than those specified in paragraph (a), (b) or (c) above) and such default
shall continue unremedied for a period of 30 days after such default becomes known to a
Responsible Officer of the Borrower or such Subsidiary or notice thereof is delivered to the
Borrower by the Administrative Agent or a Lender;




     (e) any representation or warranty made or deemed made in any Loan Document or the
extensions of credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished;




     (f) the Borrower or any Subsidiary shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness in a principal amount in excess of
$5,000,000, when and as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any Indebtedness in excess of $5,000,000 if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf to cause, with or without the
giving of notice or the lapse of time or both, such Indebtedness to become due prior to its
stated maturity;




     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or
any Subsidiary, or of a substantial part of its property or assets, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower
or any Subsidiary, or for a substantial part of its property or assets, or (iii) the
winding-up or liquidation of the Borrower or any Subsidiary; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;




     (h) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,



 









 







insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition
described in paragraph (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for such party
or for a substantial part of its property or assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing.




     (i) one or more judgments or orders for the payment of money in an aggregate amount in
excess of $10,000,000 shall be rendered against the Borrower or any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any judgment creditor shall
levy upon assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;




     (j) (i) any person shall engage in any “prohibited transaction” (as defined in Section
406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding
deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, or any Lien shall arise on the assets of the Borrower or any Commonly
Controlled Entity in favor of the PBGC or a Plan, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed (or a trustee shall be
appointed) to administer, or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for purposes of Title
IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the termination, reorganization or insolvency of (within the meaning of
such terms as used in ERISA), a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and, in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or conditions, if any,
could reasonably be expected to result in liability of the Borrower and the Subsidiaries in
an aggregate amount exceeding $10,000,000;




     (k) any Lien purported to be created by any Collateral Document shall cease to be, or
shall for any reason be asserted by the Borrower or any Subsidiary not to be, a valid,
perfected, first priority Lien on the Collateral covered thereby, except as priority may be
affected by Liens permitted under Section 6.02 and except for releases of Collateral in
accordance with all applicable provisions of this Agreement and the Collateral Documents;




     (l) any Loan Document or any material provision of any Loan Document shall be declared
by any Governmental Authority to be invalid or unenforceable in whole



 









 







or in part, or shall be asserted by the Borrower or any Subsidiary not to be, in full
force and effect and enforceable in accordance with its terms; or




     (m) any Change of Control (as defined in this Agreement) shall occur;


then, and in every such event, and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, take one or more of the
following actions, at the same or different times: (i) by notice to the Borrowers terminate the
Commitments and they shall immediately terminate; (ii) by notice to the Borrowers declare the Loans
then outstanding to be forthwith due and payable (in whole or, in the sole discretion of the
Required Lenders, from time to time in part, provided that any such partial acceleration shall be
made pro rata based on the outstanding principal amount of Loans of each Class), whereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder or under
any other Loan Document, shall thereupon become immediately due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding;
(iii) require cash collateral as contemplated by Section 2.23(k) in an amount not exceeding the
Letter of Credit Exposure; (iv) exercise any remedies available under the Guarantee Agreement, the
Collateral Documents or otherwise; or (v) any combination of the foregoing; provided,
that, in the case of (A) any of the Events of Default with respect to the Borrowers
described in paragraph (g) or (h) above or (B) the Event of Default specified in paragraph (o)
above, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder or under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or
in any other Loan Document to the contrary notwithstanding.




ARTICLE VIII




THE ADMINISTRATIVE AGENT AND ISSUING BANK




     SECTION 8.01. Appointment and Authorization.




     (a) Each of the Lenders, and each subsequent holder of any Note by its acceptance
thereof, hereby irrevocably appoints and authorizes the Administrative Agent and the Issuing
Bank to take such actions as administrative agent on behalf of such Lender or holder and to
exercise such powers as are specifically delegated to the Administrative Agent or the
Issuing Bank, as the case may be, by the terms and provisions hereof and of the other Loan
Documents, together with such actions and powers as are reasonably incidental thereto.




     (b) The Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, and hereby agrees (in the case of clause (ii) below,
at the direction of the Required Lenders), (i) to receive on behalf of the Lenders all
payments of principal of and interest on the Loans and all other amounts due



 









 







to the Lenders hereunder, and promptly to distribute to each Lender its proper share of
each payment so received; (ii) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; (iii) to give
notice to the Lenders of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency hereunder;
and (iv) to distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by the
Administrative Agent.




     (c) The Administrative Agent is hereby expressly authorized by each Lender to direct
the Collateral Agent, in the name of and on behalf of such Lender, to release any Collateral
that is being sold, transferred, leased or otherwise disposed of by the Borrower or any
Subsidiary in a transaction permitted by Section 6.05 or which (subject to Section
9.08(b)(iv)) is approved by the Required Lenders.



     SECTION 8.02. Liability of the Administrative Agent. Neither the Administrative
Agent, the Issuing Bank, nor any of their respective directors, officers, employees or agents,
shall be liable as such for any action taken or omitted to be taken by any of them, except for such
party’s own gross negligence or willful misconduct, or be responsible for any statement, warranty
or representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any Subsidiary of any of the terms, conditions, covenants or agreements contained in
any Loan Document. Neither the Administrative Agent nor the Issuing Bank shall be responsible to
the Lenders or the holders of the Notes for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, the Notes or any other Loan Documents or other
instruments or agreements. The Administrative Agent and the Issuing Bank may deem and treat the
payee of any Note as the owner thereof for all purposes hereof until it shall have received from
the payee of such Note notice, given as provided herein, of the transfer thereof in compliance with
Section 9.04. Each of the Administrative Agent and the Issuing Bank shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written instructions signed by
the Required Lenders and, except as otherwise specifically provided herein, such instructions and
any action or inaction pursuant thereto shall be binding on all the Lenders and each subsequent
holder of any Note. The Administrative Agent, the Issuing Bank and the Required Lenders shall, in
the absence of knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Administrative Agent, the Issuing Bank nor any of their
respective directors, officers, employees or agents, shall have any responsibility to the Borrowers
on account of the failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in performance or
breach by any other Lender or the Borrower or any Subsidiary of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or therewith. The
Administrative Agent and the Issuing Bank may execute any and all duties hereunder by or through
agents or employees, shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts.



 









 





     SECTION 8.03. Action by the Administrative Agent. The Lenders hereby acknowledge
that neither the Administrative Agent nor the Issuing Bank shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders. The obligations of the
Administrative Agent and the Issuing Bank under the Loan Documents are only those expressly set
forth herein and therein. Without limiting the generality of the foregoing, no Administrative
Agent shall be required to take any action with respect to any Default or Event of Default, except
as expressly required pursuant to Article VII.



     SECTION 8.04. Successor Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent, the Administrative Agent and the Issuing Bank
(except, in the case of the Issuing Bank, in respect of Letters of Credit issued by it) may resign
at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor subject to approval by the Borrower (which
shall not be unreasonably withheld). If no successor shall have been so appointed by the Required
Lenders, and shall have accepted such appointment within 30 days after the retiring Administrative
Agent or Issuing Bank, as the case may be, gives notice of its resignation, then the retiring
Administrative Agent or Issuing Bank, as the case may be, on behalf of the Lenders, shall appoint a
successor Administrative Agent or Issuing Bank, as applicable, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as an Administrative Agent or Issuing Bank, as the case may
be, hereunder by a successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent or Issuing Bank and the
retiring Administrative Agent or Issuing Bank shall be discharged from its duties and obligations
hereunder. After the resignation of an Administrative Agent or the Issuing Bank, as the case may
be, hereunder, the provisions of this Article and Section 9.05 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 an
Administrative Agent or Issuing Bank.



     SECTION 8.05. Administrative Agent and Affiliate. With respect to the Loans made by
it hereunder, the Letters of Credit issued by it hereunder and the Notes issued to it, the
Administrative Agent and the Issuing Bank, each in its individual capacity and not as the
Administrative Agent or the Issuing Bank, as the case may be, shall have the same rights and powers
as any other Lender and may exercise the same as though it were not the Administrative Agent or the
Issuing Bank. The Administrative Agent and the Issuing Bank (and its Affiliates) may accept
deposits from, lend money to and generally engage in any kind of business and transactions with the
Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or
the Issuing Bank (or such Affiliate thereof).



     SECTION 8.06. Indemnification. Each Lender agrees (a) to reimburse each of the
Administrative Agent and the Issuing Bank, on demand, in the amount of its pro rata share (as
determined under Section 2.17) of any expenses incurred for the benefit of the Lenders by the
Administrative Agent or the Issuing Bank, as the case may be, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the Lenders, which
shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent, the Issuing Bank and any of their respective directors, officers,




 










 




employees or agents, on demand, in the amount of such pro rata share, from and against
any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or the Issuing Bank, as the
case may be, or any of them in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by it or any of them under this Agreement or any other
such Loan Document, to the extent the same shall not have been reimbursed by the Borrower;
provided, that, no Lender shall be liable to the Administrative Agent or the
Issuing Bank for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, the Issuing Bank or any of their respective directors,
officers, employees or agents.




     SECTION 8.07. Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Issuing Bank or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Issuing Bank or any other Lender and based
on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement or any other
Loan Document, any related agreement or any document furnished hereunder or thereunder.



     SECTION 8.08. Collateral Agency Agreement. The Administrative Agent and each Lender
agree to be bound by the terms of the Collateral Agency Agreement.



     SECTION 8.09. Syndication Agent, Documentation Agent, etc. None of the Lenders
identified in this Agreement as the “Co-Syndication Agent” or “Documentation Agent” shall have any
right, power, obligation, liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same
acknowledgments with respect to such Lenders as it makes with respect to the Administrative Agent
in Section 8.07.



ARTICLE IX




MISCELLANEOUS




     SECTION 9.01. Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy as follows:




     (a) if to any Borrower, to it at 1400 Kettering Tower, Dayton, Ohio 45423,
Attention of Treasurer (Telecopy No. (937) 225-3314), with a copy to Thompson Hine LLP, 2000
Courthouse Plaza, N.E., P.O. Box 8801, Dayton, Ohio 45401-8801, Attention of David A.
Neuhardt, Esq. (Telecopy No: (937) 443-6635);



 









 






     (b) if to the Administrative Agent to it at 131 S. Dearborn, Mail Code IL1-0364,
Chicago, IL 60670, Attention: Dana E. Jurgens (Telecopy No. (312) 325-3190); and




     (c) if to a Lender, to it at its address (or telecopy number) set forth on its
signature page hereto or in the Assignment and Acceptance pursuant to which such Lender
shall have become a party hereto.


All notices and other communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy or on the date three Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed)
to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 9.01. In all events, notice shall be deemed
effective immediately upon refusal of delivery thereof irrespective of the method of such delivery.




     SECTION 9.02. Survival of Agreement and Indemnities. (a) All covenants, agreements,
representations and warranties made by the Borrowers herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the Lenders, the Administrative Agent
and the Issuing Bank and shall survive the making by the Lenders of the Loans, the execution and
delivery to the Lenders of the Notes evidencing such Loans, and the issuance of the Letters of
Credit, regardless of any investigation made by the Lenders, the Administrative Agent or the
Issuing Bank or on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any loan, any Fee, any Letter of Credit Disbursement or any
other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not been terminated. The
provisions of Section 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document or any investigation made by or on behalf of the
Administrative Agent, the Issuing Bank or any Lender.



     (b) Notwithstanding anything contained herein to the contrary, each of the Borrowers
acknowledges and agrees that all Obligations of the Borrowers under Section 2.14, 2.16, 2.20 and
9.05 of the Existing Credit Agreement shall remain operative and in full force and effect for the
benefit of the “Lenders”, “Issuing Banks” and “Agents” under the Existing Credit Agreement despite
the effectiveness of this Amended Agreement and regardless of whether any of the foregoing parties
are parties to this Amended Agreement. The “Syndication Agents” and any “Lender” under the
Existing Credit Agreement which is not a Lender hereunder shall be a third party beneficiary of
this Section.



     SECTION 9.03. Binding Effect. This Agreement shall become effective on the Effective
Date.



 









 





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




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




     (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Commitment to an
assignee that is a Lender with a Commitment immediately prior to giving effect to
such assignment; and




     (C) the Issuing Bank.



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




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement;



 









 






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




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and the other
Loan Parties and their related parties or their respective securities) will be made
available and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state securities
laws.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




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





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.20 and 8.06).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.




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



 









 






     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed administrative questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.03(d), 2.22(c), 2.23(d) or
(e), or 8.06, the Administrative Agent shall have no obligation to accept such Assignment
and Assumption and record the information therein in the Register unless and until such
payment shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.




     (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent,
the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other
entities (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender’s obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.14, 2.15 and 2.20 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 9.06 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.18 as though it were a Lender.




     (ii) A Participant shall not be entitled to receive any greater payment under
Section 2.14 or 2.20 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent.
A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.20 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit
of the Borrower, to comply with Section 2.20(f) as though it were a Lender.



 









 






     (d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.



     SECTION 9.05. Expenses; Indemnity.




     (a) The Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Arranger or the Issuing Bank in connection with the preparation,
execution and administration of this Agreement and the other Loan Documents, the syndication
or closing of the Revolving Credit Facility, the administration of the Revolving Credit
Facility or any actual or proposed amendment, modification or waiver of the provisions
hereof or thereof and the Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Arranger, the Issuing Bank or any Lender in
connection with the enforcement or protection of the rights of the Administrative Agent, the
Issuing Bank and the Lenders under this Agreement and the other Loan Documents or in
connection with the Loans made, the Notes issued hereunder or the Letters of Credit issued
hereunder, including the reasonable fees, charges and disbursements of (i) Winston & Strawn
LLP counsel to the Administrative Agent, (ii) any third party consultants retained with the
Borrower’s consent, which consent will not be unreasonably withheld, to assist the
Administrative Agent in analyzing any environmental, insurance, solvency related and other
due diligence issues and (iii) in connection with any such enforcement or protection
(including any workout or restructuring or any negotiations relating thereto), any other
counsel for the Administrative Agent, the Issuing Bank or any Lender (including the
allocated internal fees and expenses of any in-house staff counsel).




     (b) The Borrower agrees to indemnify the Administrative Agent, the Arranger, the
Issuing Bank, the Affiliates of the Administrative Agent, the Lenders, and their respective
directors, officers, employees, agents and Controlling persons (each, an “Indemnified
Party”) from and against any and all losses, claims (whether valid or not), damages and
liabilities, joint or several, to which such Indemnified Party may become subject, related
to or arising out of (i) the Revolving Credit Facility, (ii) the execution or delivery of
this Agreement or any other Loan Document or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto or thereto of their respective obligations
hereunder or thereunder and the other transactions contemplated hereby and thereby, (iii)
the use of the Letters of Credit or the proceeds of the Loans or (iv) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any Indemnified
Party is a party thereto. The Borrower further agrees to reimburse each Indemnified Party
for all expenses (including reasonable attorneys’ fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense of any pending or
threatened claim or any action or proceeding arising therefrom. Notwithstanding the
foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(b)
shall not apply in respect of any loss, claim, damage or



 









 







liability to the extent that a court of competent jurisdiction shall have determined by
final and nonappealable judgment that such loss, claim, damage or liability resulted from
such Indemnified Party’s gross negligence or willful misconduct.




     (c) The Borrower agrees to indemnify the Administrative Agent, the Arranger, the
Issuing Bank, the Lenders and the other Indemnified Parties from and against any and all
losses, claims (whether valid or not), damages and liabilities, joint or several, to which
such Indemnified Party may become subject, related to or arising out of (i) any Federal,
state, local or other statute, ordinance, order, judgment, ruling or regulation relating to
environmental pollution, regulation or control affecting the Borrower, any Subsidiary or its
properties or assets, (ii) any Hazardous Materials managed by the Borrower or any
Subsidiary, (iii) any event, condition or circumstance involving environmental protection,
pollution, regulation or control affecting the Borrower or any Subsidiary or its properties
or assets or (iv) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnified Party is a party thereto. The Borrower further
agrees to reimburse each Indemnified Party for all expenses (including reasonable
consultants’ and attorneys’ fees and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim or any
action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to
indemnify any Indemnified Party under this Section 9.05(c) shall not apply in respect of any
loss, claim, damage or liability to the extent that a court of competent jurisdiction shall
have determined by final and nonappealable judgment that such loss, claim, damage or
liability resulted from such Indemnified Party’s gross negligence or willful misconduct.




     (d) In the event that the foregoing indemnity is unavailable or insufficient to hold an
Indemnified Party harmless, then the Borrower will contribute to amounts paid or payable by
such Indemnified Party in respect of such Indemnified Party’s losses, claims, damages or
liabilities in such proportions as appropriately reflect the relative benefits received by
and fault of the Borrower and such Indemnified Party in connection with the matters as to
which such losses, claims, damages or liabilities relate and other equitable considerations.




     (e) If any action, proceeding or investigation is commenced, as to which any
Indemnified Party proposes to demand such indemnification, it shall notify the Borrower with
reasonable promptness; provided, that, any failure by such Indemnified Party
to notify the Borrower shall not relieve the Borrower from its obligations hereunder except
to the extent the Borrower is prejudiced thereby. The Borrower shall be entitled to assume
the defense of any such action, proceeding or investigation, including the employment of
counsel and the payment of all fees and expenses. Each Indemnified Party shall have the
right to employ separate counsel in connection with any such action, proceeding or
investigation and to participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by such Indemnified Party, unless (i) the Borrower has failed to
assume the defense and employ counsel as provided herein, (ii) the Borrower has agreed in
writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding or
investigation has been commenced against such Indemnified Party and the Borrower and
representation of both the Borrower and such Indemnified



 









 







Party by the same counsel would be inappropriate because of actual or potential
conflicts of interest between the parties (in the case of the Administrative Agent or any
Lender, the existence of any such actual or potential conflict of interest to be determined
by such party, taking into account, among other things, any relevant regulatory concerns).
In the case of any circumstance described in clause (i), (ii), or (iii) of the immediately
preceding sentence, the Borrower shall be responsible for the reasonable fees and expenses
of such separate counsel; provided, that, the Borrower shall not in any
event be required to pay the fees and expenses of more than one separate counsel (plus
appropriate local counsel under the direction of such separate counsel) for all Indemnified
Parties, unless representation of all Indemnified Parties by the same counsel would be
inappropriate due to actual or potential conflicting interests between such Indemnified
Parties, in which case, the Borrower shall be required to pay the fees and expenses of such
additional counsel as are necessary to prevent such conflicting interests. The Borrower
shall be liable only for settlement of any claim against an Indemnified Party made with the
Borrower’s written consent.




     (f) The provisions of this Section 9.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or
any investigation made by or on behalf of the Administrative Agent or any Lender. All
amounts due under this Section 9.05 shall be payable on written demand therefor.



     SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final except deposits for the payment of payroll taxes) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the account of the
Borrowers against any of and all the obligations of the Borrowers now or hereafter existing under
this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this Section 9.06 are
in addition to other rights and remedies (including other rights of setoff) which such Lender may
have.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.



     SECTION 9.08. Waivers; Amendment.




     (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further



 









 







exercise thereof or the exercise of any other right or power. The rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies which they
would otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrowers or any other Secured Party therefrom
shall in any event be effective unless the same shall be permitted by Section 9.08(b), and
then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on the Borrowers in any case shall entitle the
Borrowers to any other or further notice or demand in similar or other circumstances.




     (b) None of this Agreement, the other Loan Documents and any provision hereof or
thereof may be waived, amended or modified (and no consent to the departure by the Borrowers
or any other Secured Party therefrom may be effective), except pursuant to an agreement or
agreements in writing entered into (or consented to in writing) by the Borrowers and the
Required Lenders; provided, that, no such agreement shall (i) decrease the
principal amount of or extend the maturity of or date for the payment of any interest on any
Loan or of the reimbursement of a Letter of Credit Disbursement, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan or a Letter of
Credit Disbursement, without the prior written consent of each Lender affected thereby, (ii)
change or extend the Commitments or decrease the Fees of any Lender without the prior
written consent of such Lender, (iii) except as contemplated by Section 2.10(d), increase
the aggregate Commitments of the Lenders without the prior written consent of each Lender,
(iv) amend or modify the provisions of Section 2.17 or 9.04(a)(i), the provisions of this
Section, the definition of the term “Required Lenders,” release at one time or serially in
the aggregate all or substantially all the Guarantors or all or substantially all the
Collateral, without the prior written consent of each Lender; and (v) reduce the amount or
extend the payment date for any mandatory prepayment required by Section 2.12
provided, further, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Swingline Lender (in its
capacity as such) or the Issuing Bank hereunder or under any other Loan Document without the
prior written consent of the Administrative Agent, the Swingline Lender or the Issuing Bank,
as applicable. Notwithstanding the foregoing, upon the execution and delivery of all
documentation required by Section 2.10(d) to be delivered in connection with an
increase to the Aggregate Commitment, the Administrative Agent, the Borrowers and the new or
existing Lenders whose Revolving Credit Commitments have been affected may and shall enter
into an amendment hereof (which shall be binding on all parties hereto) solely for the
purpose of reflecting any new Lenders and their new Revolving Credit Commitments and any
increase in the Revolving Credit Commitment of any existing Lender. Each Lender and each
holder of a Note shall be bound by any waiver, amendment or modification authorized by this
Section 9.08 regardless of whether its Note shall have been marked to make reference
thereto, and any consent by any Lender or holder of a Note pursuant to this Section 9.08
shall bind any person subsequently acquiring any Obligation.



 









 





     SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein or in the
Notes to the contrary, if at any time the applicable interest rate, together with all fees and
charges which are treated as interest under applicable law (collectively the “Charges”), as
provided for herein or in any other document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum rate
permitted by applicable law (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate of interest payable
under the affected Note held by such Lender, together with all Charges payable to such Lender,
shall be limited to the Maximum Rate.



     SECTION 9.10. Entire Agreement.




     (a) This Agreement, the other Loan Documents and the Fee Letter constitute the entire
contract among the parties relative to the subject matter hereof and thereof. Any previous
agreement among the parties with respect to the subject matter hereof and thereof is
superseded by this Agreement, the other Loan Documents and the Fee Letter. Nothing in this
Agreement, the other Loan Documents or the Fee Letter, expressed or implied, is intended to
confer upon any party (other than the parties hereto and the other Secured Parties) any
rights, remedies, obligations or liabilities under or by reason of this Agreement, the other
Loan Documents or the Fee Letter.




     (b) THIS WRITTEN AGREEMENT, THE NOTES, THE OTHER LOAN DOCUMENTS, THE FEE LETTER AND THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



     SECTION 9.11. Severability. In the event any one or more of the provisions contained
in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions contained herein
and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.



     SECTION 9.12. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts and each such counterpart shall be deemed to be an original, admissible into
evidence, but all such counterparts shall together constitute but one and the same Agreement, and
shall become effective as provided in Section 9.03. Delivery of an executed counterpart of this
Agreement by facsimile shall be equally as effective as delivery of a manually executed counterpart
of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile
shall also deliver a manually executed counterpart of this Agreement, but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.



 









 





     SECTION 9.13. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.



     SECTION 9.14. Remedies. In case any one or more of the covenants and/or agreements
set forth in this Agreement shall have been breached by any Borrower, then the Administrative Agent
may, on behalf of the Lenders, proceed to protect and enforce the Lenders’ rights either by suit in
equity and/or by action at law, including, but not limited to, an action for damages as a result of
any such breach and/or an action for specific performance of any such covenant or agreement
contained in this Agreement. Without limitation of the foregoing, the Borrowers agree that failure
to comply with any of the covenants contained herein will cause irreparable harm and that specific
performance shall be available in the event of any breach thereof. The Administrative Agent acting
pursuant to this Section 9.14, shall be indemnified against all liability, loss or damage, together
with all reasonable costs and expenses related thereto (including reasonable legal and accounting
fees and expenses) in accordance with Section 9.05.



     SECTION 9.15. Jurisdiction, Consent to Service of Process; Waiver of Jury Trial.




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




     (b) Each of the Borrowers hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or the other Loan Documents in any New York State court or Federal court of
the United States of America sitting in the State of New York. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




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



 









 






     (d) THE BORROWERS, THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.



     SECTION 9.16. Legend. THIS AGREEMENT AND THE NOTES ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN THE COLLATERAL AGENCY AGREEMENT WHICH, AMONG OTHER THINGS, ESTABLISHES
CERTAIN RIGHTS WITH RESPECT TO THE SECURITY FOR THIS AGREEMENT AND THE NOTES AND THE SHARING OF
PROCEEDS THEREOF WITH CERTAIN OTHER SECURED CREDITORS. COPIES OF THE COLLATERAL AGENCY AGREEMENT
WILL BE FURNISHED TO ANY HOLDER OF THE NOTES UPON REQUEST TO THE BORROWER.



     SECTION 9.17. Judgment Currency.




     (a) Each of the Borrower’s and any of its Subsidiaries’ (each, a “Loan Party”)
obligations hereunder to make payments in dollars or in any Foreign Currency (the
“Obligation Currency”) shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency other than the
Obligation Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent or a Lender of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such Lender under
this Agreement. If, for the purpose of obtaining or enforcing judgment against any Loan
Party in any court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being hereinafter referred
to as the “Judgment Currency”) an amount due in the Obligation Currency, the
conversion shall be made, at the Dollar Equivalent or the Foreign Currency Equivalent, as
applicable, determined in each case as of the Business Day immediately preceding the day on
which the judgment is given (such Business Day being hereinafter referred to as the
“Judgment Currency Conversion Date”).




     (b) If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, such amount
payable by the applicable Loan Party shall be reduced or increased, as applicable, such that
the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing
on the date of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion Date.



     SECTION 9.18. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in confidence, except
for disclosure (i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to
legal counsel, accountants, and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any person as requested pursuant to or as required by law,



 









 




regulation, or legal process, (v) to any person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender’s direct or indirect contractual counterparties
in swap agreements or to legal counsel, accountants and other professional advisors to such
counterparties, (vii) permitted by Section 9.04(d) and (viii) to rating agencies if requested or
required by such agencies in connection with a rating relating to the Loans hereunder.




     EACH LENDER ACKNOWLEDGES THAT INFORMATION FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY
INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS AFFILIATES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE
OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.



     ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWERS OR
THE AGENTS PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS
AFFILIATES AND THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS
AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



     SECTION 9.19. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies the Borrowers that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Borrowers, which information includes the
name and address of the Borrowers and other information that will allow such Lender to identify the
Borrowers in accordance with the Act.



     SECTION 9.20. Release of Security Interests. Each Lender hereby consents to the
release of (i) all “Collateral” (as such term is defined in that certain Security Agreement (the
“Existing Security Agreement”) dated as of December 23, 2005 by the Assignors party thereto (the
“Assignors”) in favor of the Collateral Agent), including all after acquired property, in which the
Borrowers and the other Assignors granted a security interest in favor of the Collateral Agent
pursuant to the Existing Security Agreement, and (ii) all “Mortgaged Property” (as defined in each
Mortgage (as defined in the Existing Credit Agreement)) in and on which the Mortgagor party to such
Mortgage granted a security interest and lien in favor of the Collateral Agent pursuant to such
Mortgage (the property described in clauses (i) and (ii) is collectively referred to as the “2005
Collateral”). Each Lender hereby instructs and directs the Collateral Agent to release the
security interests in and liens on the 2005 Collateral and to execute any and all documents,
releases, financing termination statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing termination statements that may be
required under applicable law), in order to effectuate the release of the



 









 




2005 Collateral. For the avoidance of doubt, the release of the 2005 Collateral shall not
include a release of the existing security interests in the Pledged Securities, General Intangibles
and all proceeds thereof (as such terms are defined in the Collateral Agency Agreement) that have
been granted in favor of the Collateral Agent.




ARTICLE X




GUARANTY




     SECTION 10.01. Guaranty of Payment. The Borrower hereby, absolutely, irrevocably and
unconditionally guarantees, as primary obligor and not as surety, the full and punctual payment
(whether at stated maturity, upon acceleration or early termination or otherwise, and at all times
thereafter) and performance of the Obligations of the Subsidiary Borrower, including without
limitation any such Obligations incurred or accrued during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding of the Subsidiary Borrower, whether or not
allowed or allowable in such proceeding (collectively, the “Guaranteed Debt”). Upon
failure by the Subsidiary Borrower to pay punctually any such amount pursuant to this Agreement or
to deposit any amount or deliver any cash collateral, execute any documents or take any other
action pursuant to this Agreement or any other Loan Document, the Borrower agrees that it shall
forthwith on demand pay to (or deposit with, as applicable) the Administrative Agent for the
benefit of the Lenders and, if applicable, their Affiliates, the amount not so paid or deposited at
the place and in the manner specified in this Agreement or any other Loan Document, as the case may
be, and shall also execute any documents and take any other action the Subsidiary Borrower is
required to execute or take but has failed to execute or take (it being understood that the intent
hereof is that to the extent that the Subsidiary Borrower shall fail to provide the Administrative
Agent with a perfected first priority security interest in a specified amount of cash collateral as
required hereby, the Borrower shall be obligated to make all deposits, sign all documents and take
all such other actions as may be required to assure the Administrative Agent such a security
interest in such cash collateral). This Guaranty is a guaranty of payment and not of collection.
The Borrower waives any right to require the Administrative Agent or any Lender to sue the
Subsidiary Borrower, any other guarantor, or any other person obligated for all or any part of the
Guaranteed Debt, or otherwise to enforce its payment against any collateral securing all or any
part of the Guaranteed Debt.



     SECTION 10.02. Acceptance of Guaranty; No Setoffs. The Borrower waives notice of the
acceptance of this Guaranty and of the extension or incurrence of the Guaranteed Debt or any part
thereof. The Borrower further waives all setoffs and counterclaims and presentment, protest,
notice, filing of claims with a court in the event of receivership, bankruptcy or reorganization of
the Subsidiary Borrower, demand or action on delinquency in respect of the Guaranteed Debt or any
part thereof, including any right to require the Administrative Agent, the Issuer or the
Participants to sue the Subsidiary Borrower, any other guarantor or any other person obligated with
respect to the Guaranteed Debt or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Debt or any part thereof.



     SECTION 10.03. Nature of Guaranty; Continuing, Absolute and Unconditional. The
Borrower hereby agrees that, to the fullest extent permitted by law, its obligations hereunder
shall be continuing, absolute and unconditional under any and all circumstances and not subject to
any



 









 




reduction, limitation, impairment, termination, defense (other than indefeasible payment in
full), setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by
it to the fullest extent permitted by law), whether by reason of any claim of any character
whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or
compromise. The validity and enforceability of this Guaranty shall not be impaired or affected by
any of the following: (a) any extension, modification or renewal of, or indulgence with respect to,
or substitution for, the Guaranteed Debt or any part thereof or any agreement relating thereto at
any time; (b) any failure or omission to perfect or maintain any lien on, or preserve rights to,
any security or collateral or to enforce any right, power or remedy with respect to the Guaranteed
Debt or any part thereof or any agreement relating thereto, or any collateral securing the
Guaranteed Debt or any part thereof; (c) any waiver of any right, power or remedy or of any default
with respect to the Guaranteed Debt or any part thereof or any agreement relating thereto or with
respect to any collateral securing the Guaranteed Debt or any part thereof; (d) any release,
surrender, compromise, settlement, waiver, subordination or modification, with or without
consideration, of any collateral securing the Guaranteed Debt or any part thereof, any other
guaranties with respect to the Guaranteed Debt or any part thereof, or any other obligations of any
person or entity with respect to the Guaranteed Debt or any part thereof; (e) the enforceability or
validity of the Guaranteed Debt or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to any collateral securing the Guaranteed Debt or
any part thereof; (f) the application of payments received from any source to the payment of
indebtedness other than the Guaranteed Debt, any part thereof or amounts which are not covered by
this Guaranty even though the Lenders might lawfully have elected to apply such payments to any
part or all of the Guaranteed Debt; (g) any change of ownership of the Subsidiary Borrower or the
insolvency, bankruptcy or any other change in the legal status of the Subsidiary Borrower; (h) any
change in, or the imposition of, any law, decree, regulation or other governmental act which does
or might impair, delay or in any way affect the validity, enforceability or the payment when due of
the Guaranteed Debt; (i) the failure of the Subsidiary Borrower to maintain in full force, validity
or effect or to obtain or renew when required all governmental, insurance and other approvals,
licenses or consents required in connection with the Guaranteed Debt, or to take any other action
required in connection with the performance of all obligations pursuant to the Guaranteed Debt; (j)
the existence of any claim, setoff or other rights which the Borrower may have at any time against
the Subsidiary Borrower or any other guarantor or any other person in connection herewith or with
any unrelated transaction; (k) any borrowing, use of cash collateral, or grant of a security
interest by the Subsidiary Borrower, as debtor in possession, under any applicable federal, state
or foreign bankruptcy or other similar law; (l) the disallowance of all or any portion of any of
the Lenders’ claims for repayment of the Guaranteed Debt under any applicable federal, state or
foreign bankruptcy or other similar law; or (m) any other fact or circumstance which might
otherwise constitute grounds at law or equity for the discharge or release of the Borrower from its
obligations hereunder, all whether or not the Borrower shall have had notice or knowledge of any
act or omission referred to in the foregoing clauses (a) through (l) of this paragraph. It is
agreed that the Borrower’s liability hereunder is independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Debt or any part thereof, and that
the Borrower’s liability hereunder may be enforced regardless of the existence, validity,
enforcement or non-enforcement of any such other guaranties or other obligations or any provision
of any applicable law or regulation purporting to prohibit payment by the Subsidiary Borrower of
the


 









 






Guaranteed Debt in the manner agreed upon among the Administrative Agent, the Lenders and the
Borrower.




     SECTION 10.04. Dealings with the Subsidiary Borrower. Credit may be granted or
continued from time to time by Lenders to the Subsidiary Borrower without notice to or
authorization from the Borrower regardless of the Subsidiary Borrower’s financial or other
condition at the time of any such grant or continuation. Neither the Administrative Agent nor any
Lender shall have an obligation to disclose or discuss with the Borrower its assessment of the
financial condition of the Subsidiary Borrower.



     SECTION 10.05. Subrogation. Until the irrevocable payment in full of the Obligations
and termination or expiry of this Agreement and termination of all commitments which could give
rise to any Obligation, the Borrower (a) shall not enforce or exercise any right of subrogation
with respect to the Guaranteed Debt, (b) hereby waives any right to enforce any remedy which the
Administrative Agent or the Lenders now have or may hereafter have against the Subsidiary Borrower,
any endorser or any other guarantor of all or any part of the Guaranteed Debt, and (c) hereby
waives any benefit of, and any right to participate in, any security or collateral given to the
Administrative Agent or the Lenders to secure payment of the Guaranteed Debt or any part thereof or
any other liability of the Subsidiary Borrower to the Administrative Agent or the Lenders.



     SECTION 10.06. Collateral. The Borrower authorizes the Administrative Agent to take
any action or exercise any remedy available to them hereunder, under any Loan Document or under
applicable law with respect to any cash collateral from time to time securing the Guaranteed Debt,
which the Administrative Agent in its sole discretion shall determine, without prior notice to the
Borrower (but with prompt written notice to the Borrower after the application of cash collateral).
In the event the Administrative Agent and the Lenders in their sole discretion elect to give
notice of any action with respect to any cash collateral securing the Guaranteed Debt or any part
thereof, ten (10) days’ written notice sent to the Borrower by recognized courier service at the
addresses set forth on the signature pages hereto shall be deemed reasonable notice of any matters
contained in such notice. The Borrower consents and agrees that neither the Administrative Agent
nor the Lender shall be under any obligation to marshall any assets in favor of the Borrower or
against or in payment of any or all of the Guaranteed Debt. Notwithstanding anything herein to the
contrary, cash collateral provided hereunder may be applied only to the Obligations.



     SECTION 10.07. Rights to Payments, Etc. In the event that acceleration of the time
for payment of any of the Guaranteed Debt is stayed upon the insolvency, bankruptcy or
reorganization of the Subsidiary Borrower, or otherwise, all such amounts shall nonetheless be
payable by the Borrower forthwith upon demand by the Administrative Agent or the Lenders. The
Borrower further agrees that, to the extent that any other Borrower makes a payment or payments to
any of the Lenders on the Guaranteed Debt (including any payment pursuant to Article VIII),
or the Administrative Agent or the Lenders receive any collateral or proceeds of collateral
securing the Guaranteed Debt, which payment or receipt of proceeds or collateral or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be returned or repaid to such Borrower, its estate, trustee, receiver, debtor in
possession or any other party, including, without limitation, the Borrower, under any insolvency



 









 




or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of
such payment, return or repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred.




     SECTION 10.08. No Waiver. No delay on the part of the Administrative Agent or the
Lenders in the exercise of any right, power or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent or the Lenders of any right, power or remedy
shall preclude any further exercise thereof; nor shall any amendment, supplement, modification or
waiver of any of the terms or provisions of this Guaranty be binding upon the Administrative Agent
or the Lenders, except as expressly set forth in a writing duly signed and delivered on the
Lenders’ behalf by the Administrative Agent. The failure by the Administrative Agent or the
Lenders at any time or times hereafter to require strict performance by any Borrower (including,
without limitation, the Borrower hereunder) of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement, agreement, guaranty, instrument or
document now or at any time or times hereafter executed pursuant to the terms of, or in connection
with, this Agreement by any Borrower and delivered to the Administrative Agent or the Lenders shall
not waive, affect or diminish any right of the Administrative Agent or the Lenders at any time or
times hereafter to demand strict performance thereof, and such right shall not be deemed to have
been waived by any act or knowledge of the Administrative Agent or the Lenders, their agents,
officers or employees, unless such waiver is contained in an instrument in writing duly signed and
delivered on the Lenders’ behalf by the Administrative Agent. No waiver by the Administrative
Agent or the Lenders of any default shall operate as a waiver of any other default or the same
default on a future occasion, and no action by the Administrative Agent or the Lenders permitted
hereunder shall in any way affect or impair the Administrative Agent’s or the Lenders’ rights or
powers, or the obligations of the Borrower under this Guaranty. Any determination by a court of
competent jurisdiction of the amount of any Guaranteed Debt owing by the Subsidiary Borrower to the
Lenders shall be conclusive and binding on the Borrower irrespective of whether the Borrower was a
party to the suit or action in which such determination was made.



     SECTION 10.09. Setoff. In addition to and without limitation of any rights, powers
or remedies of the Administrative Agent or the Lenders under applicable law, any time after
maturity of the Guaranteed Debt, whether by acceleration or otherwise, the Administrative Agent or
the Lenders may, in their sole discretion, with prompt written notice after the fact to the
Borrower and regardless of the acceptance of any security or collateral for the payment hereof,
appropriate and apply toward the payment of outstanding Guaranteed Debt (a) any indebtedness due or
to become due from any of the Lenders to the Borrower, and (b) any moneys, credits or other
property belonging to the Borrower (including all account balances, whether provisional or final
and whether or not collected or available) at any time held by or coming into the possession of any
of the Administrative Agent or any Lender whether for deposit or otherwise.



     SECTION 10.10. Severability. Wherever possible, each provision of this Article X
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Guaranty.



 









 





     SECTION 10.11. Miscellaneous. It is understood that while the amount of the
Guaranteed Debt guaranteed hereby is not limited, if in any action or proceeding involving any
state, federal or foreign bankruptcy, insolvency or other law affecting the rights of creditors
generally, this Guaranty would be held or determined to be void, invalid or unenforceable on
account of the amount of the aggregate liability under this Guaranty with respect to the Borrower,
then, notwithstanding any other provision of this Guaranty to the contrary, the aggregate amount of
such liability shall, with respect to the Borrower, without any further action of the
Administrative Agent, the Issuer, the Participants or any other person, be automatically limited
and reduced with respect to the Borrower to the highest amount which is valid and enforceable as
determined in such action or proceeding. The obligations of the Borrower under this Article X
shall survive the termination of this Agreement.



[SIGNATURE PAGE FOLLOWS]





 










 





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



	 	 	 	 	 	 	 
	 	 	ROBBINS & MYERS, INC.,
as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christopher M. Hix
 

	 	 
	 

	 	Name:
	 	Christopher M. Hix	 	 
	 

	 	Title:
	 	Vice President and Chief
Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	ROBBINS & MYERS FINANCE EUROPE B.V., as Subsidiary Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin J. Brown	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kevin J. Brown	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Bank and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dana E. Jurgens	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Dana E. Jurgens	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING, INC., as Syndication Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thad D. Rasche	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thad D. Rasche	 	 
	 

	 	Title:
	 	Director	 	 
	 

	 	Address:
	 	111 West Monroe Street

Chicago, Illinois 60302	 	 
	 

	 	Telephone:
	 	312-461-5739	 	 
	 

	 	Fax:
	 	312-461-2591	 	 






 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as Co-Documentation Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark B. Malone
 

Mark B. Malone
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 

	 	Address:
	 	110 N. Main Street

Dayton, Ohio 45402	 	 
	 

	 	Telephone:
	 	937-227-6412	 	 
	 

	 	Fax:
	 	937-227-6454	 	 
	 
	 	 	 	 	 	 
	 	 	CITIZENS BANK OF PENNSYLVANIA, as Co-Documentation Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Clifford A. Mull	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Clifford A. Mull	 	 
	 

	 	Title:
	 	Vice President	 	 
	 

	 	Address:
	 	525 William Penn Place
153-2910

Pittsburgh, PA 15219-1729	 	 
	 

	 	Telephone:
	 	412-867-2432	 	 
	 

	 	Fax:
	 	412-552-6307	 	 
	 
	 	 	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anthony M. Buehler	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Anthony M. Buehler	 	 
	 

	 	Title:
	 	First Vice President	 	 
	 

	 	Address:
	 	312 Walnut Street, Suite 2200

Cincinnati, Ohio 45202	 	 
	 

	 	Telephone:
	 	513-929-3424	 	 
	 

	 	Fax:
	 	513-929-0923	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Neal J. Hinker	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Neal J. Hinker	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 
	 

	 	Address:
	 	6 N. Main Street

Dayton, Ohio 45412-2200	 	 
	 

	 	Telephone:
	 	937-226-2041	 	 
	 

	 	Fax:
	 	937-226-2058	 	 







 









 








PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable	 	Level I	 	Level II	 	Level III	 	Level IV	 	Level V	 	Level VI
	Margin	 	Status	 	Status	 	Status	 	Status	 	Status	 	Status
	LIBOR Loans
	 	 	0.40	%	 	 	0.50	%	 	 	0.60	%	 	 	0.70	%	 	 	0.80	%	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ABR Loans
	 	 	0.00	%	 	 	0.00	%	 	 	0.00	%	 	 	0.00	%	 	 	0.00	%	 	 	0.00	%






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Fee	 	Level I	 	Level II	 	Level III	 	Level IV	 	Level V	 	Level VI
	Rate	 	Status	 	Status	 	Status	 	Status	 	Status	 	Status
	Letter of Credit Fee
	 	 	0.40	%	 	 	0.50	%	 	 	0.60	%	 	 	0.70	%	 	 	0.80	%	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Facility Fee
	 	 	0.100	%	 	 	0.125	%	 	 	0.150	%	 	 	0.175	%	 	 	0.200	%	 	 	0.250	%





For the purposes of this Schedule, the following terms have the following meanings, subject to the
final paragraph of this Schedule:




     “Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to the Agreement.



     “Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Consolidated Leverage Ratio is less than
1.00 to 1.00.



     “Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Consolidated Leverage Ratio is less than 1.50 to 1.00.



     “Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Consolidated Leverage Ratio is less than 2.00 to 1.00.



     “Level IV Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II Status or Level III Status and (ii) the Consolidated Leverage Ratio is less than
2.50 to 1.00.



     “Level V Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II Status, Level III Status or Level IV Status, and the Consolidated Leverage Ratio
is less than 3.00 to 1.00.



     “Level VI Status” exists at any date if the Borrower has not qualified for Level I Status,
Level II Status, Level III Status, Level IV Status or Level V Status.



 









 





     “Status” means Level I Status, Level II Status, Level III Status, Level IV Status, Level V
Status or Level VI Status.



     During the period beginning on the Effective Date and ending on the date of the delivery of
the quarterly financial statements for the Borrower’s fiscal quarter ending November 30, 2006, the
Applicable Margin and Applicable Fee Rate shall be based on pricing Level III in the foregoing
table. Thereafter, the Applicable Margin and Applicable Fee Rate shall be determined in accordance
with the foregoing table based on the Borrower’s Status as reflected in the then most recent
Financials. Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be
effective five Business Days after the Administrative Agent has received the applicable Financials.
If the Borrower fails to deliver the Financials to the Agent at the time required pursuant to the
Credit Agreement, then the Applicable Margin and Applicable Fee Rate shall be the highest
Applicable Margin and Applicable Fee Rate set forth in the foregoing table until five days after
such Financials are so delivered.