exv10w1






Exhibit 10.1




 

 








CREDIT AGREEMENT




among




SENSIENT TECHNOLOGIES CORPORATION,

as Borrower;




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




NATIONAL CITY BANK,

as Syndication Agent,




TD BANK, N.A.,

as Documentation Agent,




and




THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO




Closing Date: October 7, 2008




 


$85,000,000 Term Credit Facility




 





WELLS FARGO BANK, NATIONAL ASSOCIATION

Arranger and Sole Book Runner








 

 


 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	     Section 1.1	 	Definitions
	 	 	1	 
	     Section 1.2	 	Times
	 	 	9	 
	     Section 1.3	 	Accounting Terms and Determinations
	 	 	9	 
	 	 	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE LOANS	 	 	10	 
	     Section 2.1	 	Term Loans
	 	 	10	 
	     Section 2.2	 	Procedure for Making Term Loans
	 	 	10	 
	     Section 2.3	 	Interest
	 	 	11	 
	     Section 2.4	 	Principal and Interest Payment Dates
	 	 	12	 
	     Section 2.5	 	Level Status and Margins
	 	 	12	 
	     Section 2.6	 	Other Fees
	 	 	14	 
	     Section 2.7	 	Voluntary Prepayments
	 	 	14	 
	     Section 2.8	 	Optional Increases of Aggregate Commitment Amount
	 	 	14	 
	     Section 2.9	 	Computation of Interest and Fees
	 	 	15	 
	     Section 2.10	 	Payments
	 	 	15	 
	     Section 2.11	 	Payment on Nonbusiness Days
	 	 	16	 
	     Section 2.12	 	Use of Term Loans
	 	 	16	 
	     Section 2.13	 	Yield Protection; Funding Indemnification
	 	 	16	 
	     Section 2.14	 	Taxes
	 	 	17	 
	     Section 2.15	 	Capital Adequacy
	 	 	19	 
	     Section 2.16	 	Substitution of Lender
	 	 	19	 
	 	 	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT	 	 	20	 
	     Section 3.1	 	Initial Conditions Precedent
	 	 	20	 
	     Section 3.2	 	Conditions Precedent to All Term Loans
	 	 	20	 
	 	 	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	21	 
	     Section 4.1	 	Corporate Existence and Power
	 	 	21	 
	     Section 4.2	 	Authorization of Borrowing; No Conflict as to Law or Agreements
	 	 	21	 
	     Section 4.3	 	Legal Agreements
	 	 	21	 
	     Section 4.4	 	Subsidiaries
	 	 	22	 
	     Section 4.5	 	Financial Condition
	 	 	22	 
	     Section 4.6	 	Adverse Change
	 	 	22	 
	     Section 4.7	 	Litigation
	 	 	22	 
	     Section 4.8	 	Hazardous Substances
	 	 	22	 
	     Section 4.9	 	Regulation U
	 	 	22	 
	     Section 4.10	 	Taxes
	 	 	23	 
	     Section 4.11	 	Burdensome Restrictions
	 	 	23	 
	     Section 4.12	 	Titles and Liens
	 	 	23	 
	     Section 4.13	 	ERISA
	 	 	23	 
	     Section 4.14	 	Investment Company Act
	 	 	23	 
	     Section 4.15	 	Solvency
	 	 	23	 
	     Section 4.16	 	Swap Obligations
	 	 	23	 
	     Section 4.17	 	Insurance
	 	 	24	 
	     Section 4.18	 	Compliance With Laws
	 	 	24	 
	     Section 4.19	 	No Contractual Default
	 	 	24	 
	 	 	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS OF THE COMPANY	 	 	24	 
	     Section 5.1	 	Financial Statements
	 	 	24	 
	     Section 5.2	 	Books and Records; Inspection and Examination
	 	 	25	 






 









 






	 	 	 	 	 	 	 
	     Section 5.3	 	Compliance with Laws
	 	 	25	 
	     Section 5.4	 	Payment of Taxes and Other Claims
	 	 	26	 
	     Section 5.5	 	Maintenance of Properties
	 	 	26	 
	     Section 5.6	 	Insurance
	 	 	26	 
	     Section 5.7	 	Preservation of Corporate Existence
	 	 	26	 
	     Section 5.8	 	Use of Proceeds
	 	 	26	 
	     Section 5.9	 	Delivery of Subsidiary Guaranties
	 	 	27	 
	 	 	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS	 	 	27	 
	     Section 6.1	 	Liens
	 	 	27	 
	     Section 6.2	 	Priority Debt
	 	 	28	 
	     Section 6.3	 	Sale of Assets
	 	 	28	 
	     Section 6.4	 	Consolidation and Merger
	 	 	29	 
	     Section 6.5	 	Hazardous Substances
	 	 	29	 
	     Section 6.6	 	Restrictions on Nature of Business
	 	 	29	 
	     Section 6.7	 	Restrictive Agreements
	 	 	29	 
	     Section 6.8	 	Transactions with Affiliates
	 	 	29	 
	     Section 6.9	 	Leverage Ratio
	 	 	30	 
	     Section 6.10	 	Fixed Charge Coverage Ratio
	 	 	30	 
	     Section 6.11	 	Adjusted Net Worth
	 	 	30	 
	     Section 6.12	 	Investments
	 	 	30	 
	     Section 6.13	 	Guarantees
	 	 	31	 
	 	 	 
	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT, RIGHTS AND REMEDIES	 	 	32	 
	     Section 7.1	 	Events of Default
	 	 	32	 
	     Section 7.2	 	Rights and Remedies
	 	 	34	 
	 	 	 
	 	 	 	 
	ARTICLE VIII THE ADMINISTRATIVE AGENT	 	 	35	 
	     Section 8.1	 	Authorization
	 	 	35	 
	     Section 8.2	 	Distribution of Payments and Proceeds
	 	 	35	 
	     Section 8.3	 	Expenses
	 	 	35	 
	     Section 8.4	 	Payments Received Directly by Lenders
	 	 	36	 
	     Section 8.5	 	Indemnification
	 	 	36	 
	     Section 8.6	 	Exculpation
	 	 	36	 
	     Section 8.7	 	Administrative Agent and Affiliates
	 	 	37	 
	     Section 8.8	 	Credit Investigation
	 	 	37	 
	     Section 8.9	 	Resignation
	 	 	37	 
	     Section 8.10	 	Assignments
	 	 	37	 
	     Section 8.11	 	Participations
	 	 	40	 
	     Section 8.12	 	Limitation on Assignments and Participations
	 	 	40	 
	     Section 8.13	 	Disclosure of Information
	 	 	40	 
	     Section 8.14	 	Titles
	 	 	41	 
	 	 	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS	 	 	41	 
	     Section 9.1	 	No Waiver; Cumulative Remedies
	 	 	41	 
	     Section 9.2	 	Amendments,
Etc.
	 	 	41	 
	     Section 9.3	 	Notices
	 	 	42	 
	     Section 9.4	 	Costs and Expenses
	 	 	43	 
	     Section 9.5	 	Indemnification by Borrower
	 	 	43	 
	     Section 9.6	 	Execution in Counterparts
	 	 	43	 
	     Section 9.7	 	Binding Effect, Assignment
	 	 	43	 
	     Section 9.8	 	Governing Law
	 	 	43	 
	     Section 9.9	 	Severability of Provisions
	 	 	44	 






-ii-









 






	 	 	 	 	 	 	 
	     Section 9.10	 	Consent to Jurisdiction
	 	 	44	 
	     Section 9.11	 	Waiver of Jury Trial
	 	 	44	 
	     Section 9.12	 	Prior Agreements
	 	 	44	 
	     Section 9.13	 	Recalculation of Covenants Following Accounting Practices Change
	 	 	44	 
	     Section 9.14	 	Headings
	 	 	44	 
	     Section 9.15	 	Nonliability of Lenders
	 	 	44	 
	     Section 9.16	 	Customer Identification — USA Patriot Act Notice
	 	 	45	 







-iii-











 





CREDIT AGREEMENT




Dated as of October 7, 2008



Sensient Technologies Corporation, a Wisconsin corporation; the Lenders, as defined below; and
Wells Fargo Bank, National Association, a national banking association, as Administrative Agent,
agree as follows:




ARTICLE I

Definitions




Section 1.1 Definitions.



For all purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular.





     “Accounting Practices Change” means any change in the Company’s accounting practices
that is required under the standards of the Financial Accounting Standards Board.




     “Acquisition Target” means any Person becoming a Subsidiary of the Company after the
date hereof; any Person that is merged into or consolidated with the Company or any
Subsidiary of the Company after the date hereof; or any Person with respect to which all or
a substantial part of that Person’s assets are acquired by the Company or any Subsidiary of
the Company after the date hereof.




     “Act” means the Securities Act of 1933, as amended.




     “Additional Lender” means a financial institution that becomes a Lender pursuant to the
procedures set forth in Section 8.10.




     “Adjusted Net Worth” means, as of the date of any determination, the aggregate amount
of the capital stock accounts (net of treasury stock, at cost), plus (or minus, in the case
of a deficit) (a) the surplus in retained earnings of the Company and its Subsidiaries as
determined in accordance with GAAP, minus (b) all Investments of the Company and its
Subsidiaries other than those specified in paragraphs (a) through (j) of Section 6.12.




     “Administrative Agent” means Wells Fargo acting in its capacity as administrative agent
for itself and the other Lenders hereunder.




     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with such Person. A Person shall be
deemed to control another Person if the controlling Person owns 25% or more of the voting
securities (or other ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise. Unless
otherwise specified, “Affiliate” means an Affiliate of the Company or a Subsidiary.




     “Aggregate Commitment Amount” means $85,000,000, as such amount may be increased
pursuant to Section 2.8.




     “Agreement” means this Credit Agreement, as it may be amended, modified or restated
from time to time in accordance with Section 9.2.



 









 






     “Assignment Certificate” has the meaning set forth in Section 8.10.




     “Base Rate” means an annual rate equal to the Reference Rate, plus the Base Rate
Margin, which rate shall change when and as the Reference Rate or any component of the Base
Rate Margin changes.




     “Base Rate Funding” means any Borrowing, or any portion of the principal balance of the
Term Notes, bearing interest at the Base Rate.




     “Base Rate Margin” means a percentage, determined as set forth in Section 2.5.




     “Borrower” means the Company.




     “Borrowing” means a borrowing under Article II consisting of Term Loans made to the
Borrower at the same time by each of the Lenders severally.




     “Business Day” means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Rate Fundings, a day (other than a Saturday or Sunday) on which banks generally
are open in Minnesota, California, Wisconsin and New York for the conduct of substantially
all of their commercial lending activities, interbank wire transfers can be made on the
Fedwire system and dealings in United States dollars, as the case may be, are carried on in
the London interbank market and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Minnesota, California, Wisconsin and New York
for the conduct of substantially all of their commercial lending activities and interbank
wire transfers can be made on the Fedwire system.




     “Capitalized Lease” means any lease that in accordance with GAAP should be capitalized
on the balance sheet of the lessee thereunder.




     “Change of Control” means, with respect to any corporation, either (i) the acquisition
by any “person” or “group” (as those terms are used in Sections 13(d) and 14(d) of the
Exchange Act) of beneficial ownership (as defined in Rules 13d-3 and 13d-5 of the SEC,
except that a Person shall be deemed to have beneficial ownership of all securities that
such Person has the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 30% or more of the then-outstanding
voting capital stock of such corporation; or (ii) a change in the composition of the
Governing Board of such corporation or any corporate parent of such corporation such that
continuing directors cease to constitute more than 50% of such Governing Board. As used in
this definition, “continuing directors” means, as of any date, (i) those members of the
Governing Board of the applicable corporation who assumed office prior to such date, and
(ii) those members of the Governing Board of the applicable corporation who assumed office
after such date and whose appointment or nomination for election by that corporation’s
shareholders was approved by a vote of at least 50% of the directors of such corporation in
office immediately prior to such appointment or nomination.




     “Commitment” means, with respect to each Lender, that Lender’s commitment to make Term
Loans pursuant to Article II.




     “Commitment Amount” means, with respect to each Lender, the amount set forth opposite
that Lender’s name in Exhibit A or on any Assignment Certificate.




     “Commitment Termination Date” means April 1, 2009, or the earlier date of termination
in whole of the Commitments pursuant to Section 7.2.



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     “Company” means Sensient Technologies Corporation, a Wisconsin corporation and a party
to this Agreement.




     “Compliance Certificate” means a certificate in substantially the form of Exhibit C, or
such other form as the Company and the Lenders may from time to time agree upon in writing,
executed by the chief financial officer, controller, chief accounting officer or treasurer
of the Company, (i) setting forth relevant facts in reasonable detail the computations as to
whether or not the Company is in compliance with the requirements set forth in the Financial
Covenants, (ii) stating that the financial statements delivered therewith have been prepared
in accordance with GAAP, subject, in the case of interim financial statements, to year-end
audit adjustments, and (iii) stating whether or not such officer has knowledge of the
occurrence of any Default or Event of Default hereunder not theretofore reported or remedied
and, if so, stating in reasonable detail the facts with respect thereto.




     “Default” means an event that, with the giving of notice, the passage of time or both,
would constitute an Event of Default.




     “Dollars” means United States Dollars.




     “EBITDA” means, with respect to any period, EBITR with respect to that period, less (to
the extent included in EBITR) Rental Expense, plus (to the extent deducted in determining
net income for purposes of EBITR) depreciation and amortization.




     “EBITR” means, with respect to any period:




	 	(i)	 	(A) the after-tax net income of the Company and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, excluding (B) non-operating gains and losses (including
extraordinary or unusual gains and losses, gains and losses from discontinuance
of operations, gains and losses arising from the sale of assets other than
inventory, and other non-recurring gains and losses)






     plus




	 	(ii)	 	the sum of the following to the extent deducted in arriving at
the after-tax net income determined in clause (i)(A) of this definition (but
without duplication for any item):






	 	(A)	 	Interest Expense,
	 
	 	(B)	 	income tax expense of the Company and its
Subsidiaries, and
	 
	 	(C)	 	Rental Expense.






     “Eligible Lender” means (a) a financial institution organized under the laws of the
United States, or any state thereof, and having a combined capital and surplus of at least
$250,000,000; (b) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and surplus of at least
$250,000,000, provided that such bank is acting through a branch or agency located in the
United States; or (c) a person controlled by, controlling, or under common control with any
entity identified in clause (a) or (b) above.



-3-









 






     “Environmental Law” means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §
1802 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.,
the Federal Water Pollution Control Act, 33 U.S.C. § 1252 et seq., the Clean Water
Act, 33 U.S.C. § 1321 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq.,
and any other federal, state, county, municipal, local or other statute, law, ordinance or
regulation which may relate to or deal with human health or the environment, all as may be
from time to time amended.




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




     “ERISA Affiliate” means any trade or business (whether or not incorporated) that is,
along with the Company, a member of a controlled group of corporations or a controlled group
of trades or businesses, as described in sections 414(b) and 414(c), respectively, of the
Internal Revenue Code of 1986, as amended.




     “Eurodollar Base Rate” means, with respect to any Interest Period, the rate per annum
which appears under the heading “British Bankers Association LIBOR Rates” on Reuters page
LIBOR01 in the column designated USD as of approximately 11:00 a.m. London time on the date
two Business Days before the commencement of such Interest Period as the rate at which
dollar deposits in immediately available funds are offered on the London interbank dollar
market for a term substantially equivalent to the applicable Interest Period; provided,
however, that if such page is no longer available, the Eurodollar Base Rate shall be
determined by the Administrative Agent on the basis of the offered rate on such other page
or other service acceptable to the Required Lenders that displays an average British Bankers
Association LIBOR rate for deposits in United States dollars with a term equivalent to such
Interest Period.




     “Eurodollar Rate” means the annual rate equal to the sum of (i) the rate obtained by
dividing (a) the applicable Eurodollar Base Rate for funds to be made available on the first
day of any Interest Period in an amount approximately equal to the amount for which a
Eurodollar Rate has been requested and maturing at the end of such Interest Period, by (b) a
percentage equal to 100% minus the Federal Reserve System reserve requirement (expressed as
a percentage) imposed under Regulation D on Eurocurrency liabilities, and (ii) the
Eurodollar Rate Margin.




     “Eurodollar Rate Funding” means any Borrowing, or any portion of the principal balance
of the Term Notes, bearing interest at a Eurodollar Rate.




     “Eurodollar Rate Margin” means a percentage, determined as set forth in Section 2.5.




     “Event of Default” has the meaning specified in Section 7.1.




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




     “Federal Funds Rate” means at any time an interest rate per annum equal to the weighted
average of the rates for 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 any day which is a
Business Day, the average of the quotations for such day for such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing selected by
it, it being understood that the Federal Funds Rate for any day which is not a Business Day
shall be the Federal Funds Rate for the next preceding Business Day.




     “Fee Letter” means the separate agreement between the Company and the Administrative
Agent, setting forth the terms of certain fees to be paid by the Company to the



-4-









 







Administrative Agent for the Administrative Agent’s own behalf or for the benefit of
the Lenders, as more fully set forth therein.




     “Financial Covenant” means any of the Company’s obligations set forth in Sections 6.9,
6.10 and 6.11.




     “Fixed Charge Coverage Ratio” means, as of the end of any fiscal quarter of the
Company, the ratio of EBITR to the sum of Interest Expense and Rental Expense, determined
with respect to the Company and its Subsidiaries for the period of four consecutive fiscal
quarters ending on such quarter-end.




     “Foreign Subsidiary” means a Subsidiary of the Company that is organized under the laws
of a jurisdiction outside of the United States of America (including any state or territory
thereof and the District of Columbia) and that is not dually incorporated under the laws of
the United States of America, any state thereof or the District of Columbia.




     “GAAP” means generally accepted accounting principles as in effect from time to time
applied on a basis consistent with the accounting practices applied in the financial
statements of the Company referred to in Section 4.5, except for changes concurred in by
Company’s independent public accountants and disclosed in Company’s financial statements or
the notes thereto.




     “Governing Board” means, with respect to any corporation, limited liability company or
similar Person, the board of directors, board of governors or other body or entity that sets
overall institutional direction for such Person.




     “Hazardous Substance” means any asbestos, urea-formaldehyde, polychlorinated biphenyls
(“PCBs”), nuclear fuel or material, chemical waste, radioactive material, explosives, known
carcinogens, petroleum products and by-products and other dangerous, toxic or hazardous
pollutants, contaminants, chemicals, materials or substances listed or identified in, or
regulated by, any Environmental Law.




     “Increased Commitment Amount” has the meaning specified in Section 2.8(a).




     “Interest Expense” means, with respect to any period, the aggregate interest expense
(including capitalized interest) of the Company and its Subsidiaries (determined on a
consolidated basis) for such period, including but not limited to the interest portion of
any Capitalized Lease.




     “Interest Period” means, with respect to any Eurodollar Rate Funding, a period of one,
two, three or six months beginning on a Business Day, as elected by the Borrower;
provided, however, that if an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next following Business
Day (unless such next following Business Day is the first Business Day of a calendar month,
in which case such Interest Period shall end on the next preceding Business Day).




     “Investment” means any stock or other securities or evidence of indebtedness of, loans
or advances to, or other interest in, any Person.




     “Investment Company Act” means the Investment Company Act of 1940, as amended.




     “Lender Party” means the Lenders and the Administrative Agent.




     “Lenders” means Wells Fargo, acting on its own behalf and not as Administrative Agent,
each of the undersigned banks and any financial institution that becomes a Lender



-5-









 







pursuant to the procedures set forth in Section 8.10 (including any Eligible Lender
that becomes a Lender pursuant to Section 2.8).




     “Level Status” means a level (designated “Level 1”, “Level 2”, and so on) determined
pursuant to Section 2.5(a).




     “Leverage Ratio” means, as of the end of any fiscal quarter of the Company, the ratio
of (A) Total Funded Debt as of that quarter-end, to (B) EBITDA during the period of four
fiscal quarters ending on that quarter-end, all determined with respect to the Company and
its Subsidiaries on a consolidated basis.




     “Lien” means any mortgage, deed of trust, lien, pledge, security interest or other
charge or encumbrance, of any kind whatsoever, including but not limited to the interest of
the lessor or titleholder under any Capitalized Lease, title retention contract or similar
agreement.




     “Loan Documents” means this Agreement, the Term Notes and the Fee Letter.




     “Margin” means a Base Rate Margin or a Eurodollar Rate Margin.




     “Material Adverse Change” means a material adverse change in the business, condition
(financial or otherwise), or operations of the Company and its Subsidiaries taken as a
whole.




     “Maturity Date” means June 15, 2012.




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




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




     “Obligations” means each and every debt, liability and obligation of every type and
description arising under any of the Loan Documents which the Borrower may now or at any
time hereafter owe to any Lender or the Administrative Agent, whether such debt, liability
or obligation now exists or is hereafter created or incurred, whether it is direct or
indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or sole, joint, several or joint and several, including but not limited to
principal of and interest on the Term Notes and all fees due under this Agreement, the Fee
Letter or any other Loan Document.




     “Off-Balance Sheet Liability” of a Person means (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person,
(ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized
Lease, and (iii) all Synthetic Lease Obligations of such Person.




     “Organizational Documents” means, (i) with respect to any corporation, the articles of
incorporation and bylaws of such corporation, (ii) with respect to any partnership, the
partnership agreement of such partnership, (iii) with respect to any limited liability
company, the articles of organization and operating agreement of such company, and (iv) with
respect to any entity, any and all other shareholder, partner or member control agreements
and similar organizational documents relating to such entity.




     “Participating Affiliate” means, (a) with respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered or managed
by a Lender or an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in bank loans and



-6-









 







similar extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.




     “Percentage” means, with respect to each Lender, the ratio of (i) the sum of (A) the
outstanding principal amount of the Term Loans owing to that Lender, and (B) at all times
prior to the Commitment Termination Date, the portion of that Lender’s Commitment Amount
that has not yet been drawn, to (ii) the sum of (A) the aggregate outstanding principal
amount of all Term Loans, and (B) at all times prior to the Commitment Termination Date, the
portion of the Aggregate Commitment Amount that has not yet been drawn.




     “Permitted Swap Obligations” means all obligations (contingent or otherwise) of the
Company or any Subsidiary thereof existing or arising under Swap Contracts, provided that
each of the following criteria is satisfied: (a) such obligations are (or were) entered into
by such Person or its Subsidiaries in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments or assets held or to be
held by such Person and not for purposes of speculation or taking a “market view;” and (b)
such Swap Contracts do not contain any provision (“walk-away” provision) exonerating the
non-defaulting party from its obligations to make payments on outstanding transactions to
the defaulting party.




     “Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.




     “Plan” means an employee benefit plan or other plan established or maintained by the
Company or any Subsidiary or ERISA Affiliate and covered by Title IV of ERISA.




     “Prime Rate” means, at any time, the rate of interest most recently announced by Wells
Fargo at its principal office as its “prime rate” or, if Wells Fargo ceases to announce a
rate so designated, any similar successor rate designated by Wells Fargo. Such rate is one
of Wells Fargo’s base rates and serves as the basis upon which effective rates of interest
are calculated for those loans making reference thereto, and is evidenced by the recording
thereof in such publication or publications as Wells Fargo may designate.




     “Priority Debt” means (a) any item of Total Funded Debt of the Company secured by a
Lien created or incurred within the limitations of Section 6.1(l), and (b) any item of Total
Funded Debt of any Subsidiary (other than any item of Total Funded Debt of a wholly-owned
domestic Subsidiary owing to another wholly-owned domestic Subsidiary).




     “Reference Rate” means, at any time, the greater of:




	 	(a)	 	the Prime Rate,






     or




	 	(b)	 	the Federal Funds Rate, plus 50 basis points (0.50%).






     “Rental Expense” means, with respect to any period, the aggregate amount of rental
payments made by the Company and its Subsidiaries (determined on a consolidated basis) for
such period with respect to operating leases.




     “Reportable Event” means (i) a “reportable event,” described in Section 4043 of ERISA
and the regulations issued thereunder, in respect of any Plan, as to which notice is
required to be given to the Pension Benefit Guaranty Corporation, (ii) a withdrawal from any
Plan, as described



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in Section 4063 of ERISA, (iii) an action to terminate a Plan for which a notice is
required to be filed under Section 4041 of ERISA, or (iv) a complete or partial withdrawal
from a Multiemployer Plan as described in Sections 4203 and 4205 of ERISA.




     “Required Lenders” means one or more Lenders (including, where relevant, Additional
Lenders) having an aggregate Percentage greater than 50%.




     “Revolving Credit Agreement” means the Credit Agreement dated June 15, 2007 among the
Borrower, Wells Fargo, as administrative agent, and the Lenders, as defined therein, as
amended, modified or restated.




     “S&P” means Standard & Poors Ratings Group, a division of McGraw-Hill Corporation.




     “SEC” means the Securities and Exchange Commission.




     “Sale and Leaseback Transaction” means any arrangement, directly or indirectly, with
any Person whereby a seller or transferor shall sell or otherwise transfer any real or
personal property and concurrently therewith lease, or repurchase under an extended purchase
contract, conditional sales or other title retention agreement, the same or substantially
similar property.




     “Solvent” means, with respect to any Person, that as of the date of determination (i)
the fair market value of the property of such Person is (A) greater than the total
liabilities (including contingent liabilities) of such Person, and (B) not less than the
amount that will be required to pay the probable liabilities on such Person’s debts as they
come due, considering all financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person’s capital is not unreasonably small in relation
to its business or any contemplated or undertaken transaction; (iii) such Person does not
intend to incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (iv) such Person is “solvent”
within the meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of
the facts and circumstances existing at such time, represents the amount that would
reasonably be expected to become an actual or matured liability.




     “Subsidiary” means (i) any corporation of which more than 50% of the outstanding shares
of capital stock having general voting power under ordinary circumstances to elect a
majority of the Governing Board of such corporation, irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting power by reason of
the happening of any contingency, is at the time directly or indirectly owned by the
Company, by the Company and one or more other Subsidiaries, or by one or more other
Subsidiaries, (ii) any partnership of which more than 50% of the partnership interest
therein are directly or indirectly owned by the Company, by the Company and one or more
other Subsidiaries, or by one or more other Subsidiaries, and (iii) any limited liability
company or other form of business organization the effective control of which is held by the
Company, the Company and one or more other Subsidiaries, or by one or more other
Subsidiaries.




     “Swap Contracts” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond, note or bill option, interest
rate option, forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or any other similar
transaction (including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or governing any
or all of the foregoing.



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     “Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a
so-called synthetic or off-balance sheet or tax retention lease or (ii) an agreement for the
use or possession of property creating obligations that do not appear on the balance sheet
of such Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as indebtedness of such Person (without regard to accounting treatment). The
amount of Synthetic Lease Obligations of any Person under any such lease or agreement shall
be the amount which would be shown as a liability on a balance sheet of such Person prepared
in accordance with GAAP if such lease or agreement were accounted for as a Capitalized
Lease.




     “Term Loan” means an advance by the Lenders to the Borrower pursuant to Section 2.1.




     “Term Note” has the meaning set forth in Section 2.1.




     “Total Funded Debt” of any Person means (without duplication) (i) all indebtedness of
such Person for borrowed money; (ii) the deferred and unpaid balance of the purchase price
owing by such Person on account of any assets or services purchased (other than trade
payables and other accrued liabilities incurred in the ordinary course of business) if such
purchase price is (A) due more than nine months from the date of incurrence of the
obligation in respect thereof or (B) evidenced by a note or a similar written instrument;
(iii) all Capitalized Lease obligations; (iv) all indebtedness secured by a Lien on any
property owned by such Person, whether or not such indebtedness has been assumed by such
Person or is nonrecourse to such Person; (v) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money (other than
such notes or drafts for the deferred purchase price of assets or services to the extent
such purchase price is excluded from clause (ii) above); (vi) indebtedness evidenced by
bonds, notes or similar written instrument; (vii) the face amount of all letters of credit
and bankers’ acceptances issued for the account of such Person, and without duplication, all
drafts drawn thereunder (other than such letters of credit, bankers’ acceptances and drafts
for the deferred purchase price of assets or services to the extent such purchase price is
excluded from clause (ii) above); (viii) net obligations of such Person under Swap Contracts
which constitute interest rate agreements or currency agreements; (ix) guaranty obligations
of such Person with respect to indebtedness for borrowed money of another Person (including
Affiliates); and (x) Off-Balance Sheet Liabilities; provided, however, that in no event
shall any calculation of Total Funded Debt of the Company include deferred taxes.




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




     “Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association and a party to this Agreement.



Section 1.2 Times



All references to times of day in this Agreement shall be references to Minneapolis, Minnesota time
unless otherwise specifically provided.




Section 1.3 Accounting Terms and Determinations



Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP; provided that in the event
of any Accounting Practices Change, then the Company’s compliance with the covenants set forth in
the Financial Covenants shall be determined on the basis of generally accepted accounting
principles in effect immediately before giving
effect to the Accounting Practices Change, until such covenants are amended in a manner
satisfactory to the Company and the Required Lenders in accordance with Section 9.13 hereof.




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ARTICLE II

Amount and Terms of the Loans




Section 2.1 Term Loans.



Each Lender agrees, severally but not jointly, on the terms and subject to the conditions
hereinafter set forth, to make Term Loans to the Borrower from time to time during the period from
the date hereof to and including the Commitment Termination Date in an aggregate amount not to
exceed that Lender’s Commitment Amount. The total amount of the Term Loans made hereunder shall not
exceed the Aggregate Commitment Amount. The credit facility established hereby is not a
revolving credit facility; except as set forth in Section 2.8(c) with respect to the adjustments
following any Increased Commitment Amount, the Borrower may not re-borrow the amount of any Term
Loan that has been repaid. The Company’s obligation to repay the Term Loans made by each Lender
shall be evidenced by a single promissory note of the Company (each, a “Term Note”) payable to the
order of that Lender, substantially in the form of Exhibit B hereto. The Term Loans shall bear
interest on the unpaid principal amount thereof from the date thereof until paid as set forth in
Section 2.3.




Section 2.2 Procedure for Making Term Loans.



Each Borrowing under Section 2.1 shall occur following written notice from the Borrower to the
Administrative Agent or telephonic request from any person purporting to be authorized to request
Term Loans on behalf of the Borrower. Each such notice or request shall specify (i) the date of the
requested Borrowing, (ii) the amount thereof, and (iii) if any portion of such Borrowing will bear
interest at a Eurodollar Rate, the Interest Period selected by the Borrower with respect thereto.
Such notice or request must be received by the Administrative Agent not later than 11:00 a.m. three
Business Days prior to the date on which such Borrowing is to occur. Concurrent with any such
notice or request, the Borrower shall deliver to the Administrative Agent in writing (which may be
by facsimile transmission) the certificate required by Section 3.2(b). Upon receiving a request for
a Borrowing under Section 2.1, and in any event not later than 3:00 p.m. on the day that the
request is received, the Administrative Agent will notify the Lenders of the amount of the
requested Borrowing, the amount of each Lender’s Term Loan with respect thereto, and, if
applicable, the fact that the Borrowing will bear interest at a Eurodollar Rate and the Interest
Period selected by the Borrower. Upon fulfillment of the applicable conditions set forth in Article
III, so long as a Lender receives notice of the requested Borrowing prior to 3:00 p.m. on the day
that the request is received, that Lender will make its Term Loan with respect to that Borrowing
available to the Administrative Agent by wire transfer of immediately available funds to the
Administrative Agent not later than 3:00 p.m. on the date called for in such notice. Prior to the
close of business on the day of the requested Borrowing, the Administrative Agent shall disburse
such funds by crediting the same to the Borrower’s demand deposit account maintained with the
Administrative Agent or in such other manner as the Administrative Agent and the Borrower may from
time to time agree. The Administrative Agent shall have no obligation to disburse the requested
Borrowing if any condition set forth in Article III has not been satisfied on the day of the
requested Borrowing. Each Borrowing shall be in the amount of $500,000 or an integral multiple of
$100,000 greater than $500,000; provided, however, that any portion of such Borrowing bearing
interest at a Eurodollar Rate must be in the amount of $3,000,000 or an integral multiple of
$1,000,000 greater than $3,000,000. The Borrower shall promptly confirm each telephonic request for
a Borrowing by executing and delivering an appropriate confirmation certificate to the
Administrative Agent. However, the Borrower shall be obligated to repay all Term Loans for which
the Borrower actually received the moneys (including but not limited to all Term Loans the proceeds
of which were deposited in any account of the Borrower) or in respect of which the Administrative
Agent reasonably believed the person requesting the same to be authorized to do so, notwithstanding
the fact
that the person requesting the same was not in fact authorized so to do. Any request for a
Borrowing shall be deemed to be a representation that the statements set forth in Section 3.2 are
correct.




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Section 2.3 Interest





     (a) The Term Loans shall bear interest on the unpaid principal amount thereof from the
date thereof until paid as set forth in this Section 2.3.




     (b) Except as set forth in this Section, the principal balance of each Term Loan shall
bear interest at the Base Rate.




     (c) At the election of the Borrower, which may be exercised from time to time, the
Borrower may request in writing or by telephone that a Eurodollar Rate be applicable for the
portion of the outstanding principal balance of the Term Loans (including any Term Loan
requested or to be requested) and for the Interest Period indicated by the Borrower in its
request; provided, however, that in no event shall more than eight
Eurodollar Rate Fundings be outstanding at any one time. The portion of the outstanding
balance of the Term Loans for which a Eurodollar Rate is requested (i) must be in the amount
(as to all Term Loans combined) of $3,000,000 or an integral multiple of $1,000,000 greater
than $3,000,000, and (ii) if such request relates to Term Loans already outstanding, must,
on the first day of the applicable Interest Period, either (1) bear interest at the Base
Rate, or (2) bear interest at a Eurodollar Rate with respect to which the Interest Period
expires on such first day. In no event may the Borrower select an Interest Period extending
beyond the Maturity Date or any other Interest Period if, following such selection, payment
of funding losses under Section 2.13(b) would be required in order to make payments of
regularly scheduled installments of principal of the Term Loans. A request for a Eurodollar
Rate (i) must be received by the Administrative Agent before 10:00 a.m. on the day three
Business Days before the first day of the proposed Interest Period (and the Administrative
Agent shall give the Lenders prompt notice thereof), and (ii) may not be rescinded by the
Borrower after such request has been made. Subject to the terms and conditions set forth
herein, the applicable Eurodollar Rate shall (subject to fluctuations in the applicable
Eurodollar Rate Margin) be the interest rate applicable for the proposed Interest Period to
the portion of the outstanding principal balance of the Term Loans to which the Eurodollar
Rate request related (and the remaining part of the principal balance of the Term Loans, if
any, shall continue to bear interest at the rate or rates previously applicable to such
amounts). At the termination of such Interest Period, the interest rate applicable to the
portion of the principal balance of the Term Loans to which the Eurodollar Rate request was
applicable shall revert to the Base Rate unless a new Eurodollar Rate request is made by the
Borrower in accordance with this Agreement. Notwithstanding anything to the contrary in this
Section, (i) the Administrative Agent shall have no obligation to permit the application of
a Eurodollar Rate for any Interest Period if any Lender, in its sole discretion, determines
that deposits in amounts equal to the requested amount, maturing at the end of the proposed
Interest Period are not readily available to such Lender from major banks in the London
interbank market, and (ii) without the consent of the Required Lenders, the Administrative
Agent will not permit the application of a Eurodollar Rate for any interest period if a
Default or Event of Default has occurred and is continuing when the request for the
Eurodollar Rate is made. Absent manifest error, the records of the Administrative Agent
shall be conclusive evidence as to the amount of the Term Loans bearing interest at a
Eurodollar Rate, the applicable Eurodollar Rate and the date on which the Interest Period
applicable to such Eurodollar Rate expires.




     (d) If any Lender, in its sole discretion, determines that it is unlawful for it to
continue to maintain its portion of any Eurodollar Rate Funding outstanding at the time of
such determination, such Lender may, by notice to the Administrative Agent and the Company,
require



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the immediate repayment thereof or, if legally permissible, convert its portion of such
Eurodollar Rate Funding to a Base Rate Funding in an amount equal to such portion of the
applicable Eurodollar Rate Funding. No amount shall be required to be paid under Section
2.13 on account of such prepayment.



Section 2.4 Principal and Interest Payment Dates.





     (a) Interest. Interest accruing at the Base Rate shall be due and payable on the last
day of each March, June, September and December and on the Maturity Date. Interest accruing
at a Eurodollar Rate shall be due and payable on the last day of the applicable Interest
Period or, if an Interest Period is in excess of three months, on the date that is three
months after the beginning of the Interest Period and after each such interest payment date
thereafter, and on the last day of the Interest Period and on the Maturity Date.




     (b) Principal. The principal balance of the Term Loans shall be due and payable in
successive quarterly installments, due and payable on the last day of each March, June,
September and December, commencing September 30, 2009, and in one final installment due and
payable on the Maturity Date. Each such installment other than the final installment shall
be in an amount equal to a percentage of the principal balance of the Term Loans outstanding
at the close of business on the Commitment Termination Date. The percentage on which each
such installment is calculated shall be as set forth below opposite the date on which such
installment is due:



	 	 	 	 	 
	Installment Due Date	 	Installment Percentage
	September 30, 2009
	 	 	2.50	%
	December 31, 2009
	 	 	2.50	%
	March 31, 2010
	 	 	2.50	%
	June 30, 2010
	 	 	2.50	%
	September 30, 2010
	 	 	3.75	%
	December 31, 2010
	 	 	3.75	%
	March 31, 2011
	 	 	3.75	%
	June 30, 2011
	 	 	3.75	%
	September 30, 2011
	 	 	5.00	%
	December 31, 2011
	 	 	5.00	%
	March 31, 2012
	 	 	5.00	%







The final installment due on the Maturity Date shall be in an amount equal to the entire
principal balance of the Term Loans then unpaid.



Section 2.5 Level Status and Margins.





     (a) Determining the Company’s Level Status and Margins. The Company’s Level Status and
Margins shall be determined quarterly based on the Company’s Leverage Ratio, in accordance
with the following table:



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	 	 	 	 	Eurodollar Rate	 	 
	Level Status	 	Leverage Ratio	 	Margin	 	Base Rate Margin
	Level 6

	 	Greater than or equal to 3.25 to 1
	 	 	2.75	%	 	 	1.25	%
	Level 5

	 	Greater than or equal to 2.75 to
1, but less than 3.25 to 1
	 	 	2.50	%	 	 	1.00	%
	Level 4

	 	Greater than or equal to 2.25 to
1, but less than 2.75 to 1
	 	 	2.25	%	 	 	0.75	%
	Level 3

	 	Greater than or equal to 1.75 to
1, but less than 2.25 to 1
	 	 	2.00	%	 	 	0.50	%
	Level 2

	 	Greater than or equal to 1.25 to
1, but less than 1.75 to 1
	 	 	1.75	%	 	 	0.25	%
	Level 1

	 	Less than 1.25 to 1
	 	 	1.50	%	 	 	0	%







The Company’s Level Status and Margin shall be adjusted as of the date that is 5 Business
Days after the last date by which the Borrower is otherwise required to deliver financial
statements in accordance with Sections 5.1(a) or 5.1(b) and the related Compliance
Certificate in accordance with Section 5.1(c) for a given period (each such date, a
“calculation date”). If the Borrower fails for any reason to deliver such financial
statements or Compliance Certificate for any given period on or before the related
calculation date, then the Company’s Level Status shall be deemed to be Level 6, and the
Margins shall be determined accordingly, until two Business Days after such financial
statements and Compliance Certificate are actually received by Administrative Agent.
Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any
reason, the Company’s actual Leverage Ratio is higher than that reported in the related
Compliance Certificate delivered for such period, then Borrower shall immediately, without
the requirement of notice or demand, pay to the Agent, for the benefit of the Lenders, an
amount equal to the excess of (A) the amount of interest that would have accrued had the
Margins for such period been based upon the Company’s actual Leverage Ratio for such period
rather than the Leverage Ratio reported in the Compliance Certificate delivered for such
period; over (B) the amount of interest or fees that was actually paid by Borrower based
upon the Company’s Leverage Ratio reported in the Compliance Certificate delivered for such
period. No adjustment shall be made if the Company’s actual Leverage Ratio is determined to
have been lower than that reported in the related Compliance Certificate delivered for a
given period.




	 	(b)	 	Additional Provisions. Notwithstanding the foregoing:
	 
	 	(i)	 	Until the first adjustment hereunder, the Company’s Level
Status shall be deemed to be Level 4, and the Margins shall be determined
accordingly.
	 
	 	(ii)	 	Until the first adjustment hereunder following September 30,
2009, the Company shall be deemed to be at Level 4 if a determination hereunder
would otherwise cause the Company’s Level Status to be Level 3, Level 2 or
Level 1.
	 
	 	(iii)	 	No reduction in the Borrower’s Level Status or Margins will be
made if a Default or an Event of Default has occurred and is continuing at the
time that such reduction would otherwise be made.






     (c) Default Rates. Upon the occurrence of any Event of Default, and so long as such
Event of Default continues without written waiver thereof by the Lenders, a default
increment equal to 200 basis points (2.00%) shall be added to the Base Rate Margin and
Eurodollar Rate Margin. Inclusion of such default increment in calculating the Base Rate
Margin and Eurodollar Rate Margin shall not be deemed a waiver or excuse of any such Event
of Default.



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Section 2.6 Other Fees.



The Borrower shall pay to the Administrative Agent (i) for the benefit of the Lenders, the upfront
fee set forth in the Fee Letter, and (ii) for the Administrative Agent’s own account and not for
the benefit of the Lenders, certain additional fees in the amounts set forth in the Fee Letter.




Section 2.7 Voluntary Prepayments.



The Borrower may prepay the Term Loans in whole or in part, without penalty or premium, at any time
and from time to time; provided that (i) any prepayment of the Term Loans shall be applied pro rata
to the prepayment of each Lender’s Term Loans, (ii) any prepayment shall be applied, first, to the
principal installments due hereunder in inverse order of their maturities, (iii) any prepayment of
the full amount of the Term Loans shall include accrued interest thereon, (iv) any prepayment of
any Eurodollar Rate Funding shall be accompanied by compensation as specified in Section 2.13(b),
(v) any prepayment of any Eurodollar Rate Funding shall be made only upon one Business Day’s prior
notice, and (vi) each prepayment of the Term Loans (other than prepayment of the Term Loans in
full) shall be in the principal amount of $1,000,000 or an integral multiple of $1,000,000. Each
partial prepayment of principal on the Term Loans shall (as among Base Rate Fundings and Eurodollar
Rate Fundings) be applied, first, to Base Rate Fundings, and, second, to Eurodollar Rate Fundings,
in inverse order of the maturities of the Interest Periods applicable thereto.




Section 2.8 Optional Increases of Aggregate Commitment Amount.





     (a) Request to Increase. At any time on or after the date hereof and on or before the
date that is 15 calendar days before the Commitment Termination Date, and so long as no
Default or Event of Default has occurred and is continuing, the Borrower may, with the
consent of and in coordination with the Administrative Agent and each Lender increasing its
Commitment Amount (including any Eligible Lender that becomes a Lender in connection
therewith) as to all of the matters set forth in this Section 2.8, from time to time propose
to increase the Aggregate Commitment Amount by increasing the Commitment Amounts of one or
more Lenders or by obtaining a Commitment from an Eligible Lender that will become a Lender.
The aggregate principal amount of each increase to the Aggregate Commitment Amount made
pursuant to this Section 2.8 (the amount of any such increase, the “Increased Commitment
Amount”) shall be equal to an integral multiple of $5,000,000. No such increase shall cause
the Aggregate Commitment Amount to exceed $105,000,000. No more than two increases in the
Aggregate Commitment Amount may be effected pursuant to this Section 2.8. No Lender shall be
obligated to increase its Commitment Amount as a result of any such request by the Borrower,
but no Lender (other than the Administrative Agent, in that capacity) shall have any right
to object to the allocation of any Increased Commitment Amount among the other Lenders
(including any Person who will become a Lender in connection therewith).




     (b) Conditions Precedent. Any increase in the Aggregate Commitment Amount under this
Section 2.8 shall become effective upon the receipt by the Administrative Agent of each of
the following, each in form and substance satisfactory to the Administrative Agent:




	 	(i)	 	An amendment, modification or joinder to this Agreement, duly
signed by the Borrower, the Administrative Agent and each Lender whose
Commitment Amount will be increased and each other Lender or Eligible Lender
who has subscribed to provide a portion of the Increased Commitment Amount,
modifying the definition of “Aggregate Revolving Commitment Amount” and setting
forth the agreement of each Eligible Lender to become a party to this Agreement
and to be bound by all the terms and provisions hereof.




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	 	(ii)	 	Amendments and modifications to any other Loan Documents
reasonably requested by the Administrative Agent in relation to the Increased
Commitment Amount, which amendments and modifications the Administrative Agent
is hereby authorized to execute and deliver on behalf of the Lenders. Such
amendments and modifications may (without limitation) impose such additional
upfront or other fees as the Administrative Agent or any Lender increasing its
Commitment Amount may require in connection with the Increased Commitment
Amount.
	 
	 	(iii)	 	Such Notes, duly executed by the Borrower, as any Lender or
Eligible Lender may require to evidence any increase in a Lender’s Commitment
Amount.
	 
	 	(iv)	 	Evidence of appropriate corporate authorization on the part of
the Borrower with respect to the Increased Commitment Amount and the execution
and delivery of the documents described in this Section 2.8.
	 
	 	(v)	 	Such opinions of counsel for the Borrower and other assurances
as the Administrative Agent may reasonably request.
	 
	 	(vi)	 	Reimbursement of the Administrative Agent’s out-of-pocket costs
and expenses (including reasonable attorney’s fees) incurred in connection
therewith.






     (c) Adjustments. If any Term Loans are outstanding when any Increased Commitment Amount
becomes effective, the Borrower shall, upon such effectiveness and in coordination with the
Administrative Agent, repay the outstanding Term Loans of certain Lenders, and incur
additional Term Loans from certain other Lenders, in each case to the extent necessary so
that all of the Lenders participate in the outstanding Term Loans ratably on the basis of
their respective Commitment Amounts (after giving effect to any increase in the Aggregate
Commitment Amount pursuant to this Section 2.8). Notwithstanding the non-revolving nature of
the Term Loans generally, the Borrower may reborrow any amount repaid solely by reason of
this paragraph (c), subject to all of the terms and conditions set forth in Section 2.1 and
elsewhere in this Agreement. The Borrower shall be obligated to pay to the applicable
Lenders any costs of the type referred to in Section 2.13(b) in connection with any such
repayment.



Section 2.9 Computation of Interest and Fees.



All interest on Base Rate Fundings accruing based on the Prime Rate will be calculated based on the
actual days elapsed in a year of 365 or 366 days, as the case may be. All other interest and all
fees hereunder shall be computed on the basis of actual number of days elapsed in a year of 360
days.




Section 2.10 Payments.



All payments of the Obligations shall be made to the Administrative Agent in immediately available
funds, without setoff or counterclaim at such office as the Administrative Agent may from time to
time designate. All payments of principal and interest on the Term Loans shall be made in Dollars.
Payments received after noon on any day shall be deemed received on the next succeeding Business
Day. The Borrower agrees that the amount shown on the books and records of each Lender as being the
principal balance of that Lender’s Term Loans, if any, shall be prima facie evidence of such
principal balance. The Borrower hereby authorizes the Administrative Agent to charge against any
demand deposit account the Borrower maintains with the Administrative Agent an amount equal to the
accrued interest and fees from time to time due and payable to the Lender Parties under the Term
Notes or hereunder, or (at the Lenders’ option) to effect a Borrowing in such amount, all without
receipt of any request for such charge or Borrowing.




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Section 2.11 Payment on Nonbusiness Days.



Whenever any payment to be made hereunder or under the Term Notes shall be stated to be due on a
day other than a Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in each case be included in the computation of payment of interest
thereon.




Section 2.12 Use of Term Loans.



The proceeds of the Term Loans shall be used by the Borrower for its general corporate purposes.




Section 2.13 Yield Protection; Funding Indemnification.



In addition to any interest payable on the Term Loans and any fees or other amounts payable
hereunder, the Borrower agrees:





     (a) If at any time after the date hereof any adoption of or change in any applicable
law, rule or regulation or the interpretation or administration thereof by any governmental
authority (including, without limitation, Regulation D of the Federal Reserve Board):




	 	(i)	 	shall subject any Lender to any tax, duty or other charges with
respect to this Agreement, or shall materially change the basis of taxation of
payments to any Lender of the principal of or interest on any of that Lender’s
Eurodollar Rate Fundings (except for the imposition of or changes in the rate
of Excluded Taxes (as defined in Section 2.14) and, without limiting Section
2.14, except for Taxes (as defined in Section 2.14) deducted or withheld by the
Borrower in accordance with applicable law); or
	 
	 	(ii)	 	shall impose or deem applicable or increase any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by any Lender (other than reserves and
assessments described in clause (i)(b) of the definition of “Eurodollar Rate”
and taken into account in determining the applicable Eurodollar Rate) because
of any portion of the principal balance of that Lender’s Eurodollar Rate
Fundings and the result of any of the foregoing would be to increase the cost
to that Lender of making or maintaining any such portion or to reduce any sum
received or receivable by that Lender with respect to such portion;






then, within 30 days after demand by any Lender the Borrower shall pay that Lender such
additional amount or amounts as will compensate that Lender for such increased cost or
reduction. A Lender shall not make demand hereunder unless that Lender is generally imposing
such increased costs on its similarly situated customers. No Lender may demand such
compensation more than 90 days following the end of the Interest Period with respect to
which such demand is made; provided, however, that the foregoing shall in no way limit the
right of any Lender to demand compensation to the extent that such compensation relates to
the retroactive application of any law, rule or regulation if such demand is made within 90
days after the adoption of or change in such law, rule or regulation. A certificate in
reasonable detail of that Lender setting forth the basis for the determination of such
additional amount or amounts shall be promptly submitted by that Lender to the Company and
shall, in the absence of manifest error, be conclusive and binding as to such amount or
amounts.




     (b) The Borrower shall also compensate any Lender, upon written request by that Lender
(which request shall set forth the basis for requesting such amounts), for all losses and
expenses in respect of any interest or other consideration paid by that Lender to lenders of
funds borrowed by it or deposited with it to maintain any portion of the principal balance
of that



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Lender’s Eurodollar Rate Fundings which that Lender may sustain to the extent not
otherwise compensated for hereunder and not mitigated by the reemployment of such funds if
any payment of any such portion occurs on a date that is not the expiration date of the
relevant Interest Period or if a Borrowing or payment in whole or in part of a Eurodollar
Rate Funding fails to occur. A certificate as to any such loss or expense (including
calculations, in reasonable detail, showing how that Lender computed such loss or expense)
shall be promptly submitted by that Lender to the Company and shall, in the absence of
manifest error, be conclusive and binding as to the amount thereof. Such loss or expense may
be computed as though that Lender acquired deposits in the London interbank market to fund
that portion of the principal balance whether or not that Lender actually did so.



Section 2.14 Taxes.





     (a) All payments made by the Borrower to the Administrative Agent or any Lender or
Additional Lender (herein any “Payee”) under this Agreement or any of the Loan Documents
shall be made free and clear of and without deduction or withholding for or on account of
any present or future taxes imposed by any governmental or other taxing authority, except as
required by law. As used herein, the term “Taxes” shall include all income, excise and other
taxes, duties or charges of whatever nature imposed on a Payee (other than taxes based on or
measured by the net income of the Payee, franchise taxes in lieu thereof, taxes on doing
business or measured by or imposed upon the capital or net worth of any such Payee, and
branch profits taxes or similar taxes, in each case imposed by the government or other
taxing authority of the country, state or political subdivision in which such Payee is
organized or incorporated or in which such Payee’s principal executive office or the office
through which the Payee is acting is located or in which the Payee is otherwise subject to
taxation (such excluded taxes being herein called “Excluded Taxes”)). If the Borrower is
compelled by law to make any such deductions or withholdings of Taxes it will:




	 	(i)	 	pay to the relevant authorities the full amount required to be
so withheld or deducted;
	 
	 	(ii)	 	except to the extent that such deduction or withholding of
Taxes results from the failure by any Payee to comply with Section 2.14(c) or
the relevant Assignment Certificate, pay such additional amounts (including,
without limitation, any penalties, interest or expenses) as may be necessary in
order that the net amount received by each Payee after such deductions or
withholdings of Taxes (including any required deduction or withholding on such
additional amounts) shall equal the amount such Payee would have received had
no such deductions or withholdings been made; and
	 
	 	(iii)	 	promptly forward to the Administrative Agent (for delivery to
such Payee) an official receipt or other documentation reasonably satisfactory
to the Administrative Agent evidencing such payment to such authorities.






     (b) If any Taxes otherwise subject to indemnification by the Borrower pursuant to
Section 2.14(a) are directly asserted against any Payee, such Payee may pay such Taxes and
the Borrower promptly shall reimburse such Payee to the full extent otherwise required by
such paragraph. The obligations of the Borrower under this Section 2.14 shall survive any
termination of this Agreement.




     (c) If any Payee is organized under the laws of any jurisdiction other than the United
States or any state thereof, such Payee will, prior to the date it becomes a party hereto,
furnish to the Administrative Agent and the Company either original, accurate and duly
executed U.S.



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Internal Revenue Service Form W-8BEN, or original, accurate and duly executed U.S.
Internal Revenue Service Form W-8ECI, as applicable, wherein such Payee will certify as to
such Payee’s entitlement to complete exemption from U.S. federal withholding tax on all
payments under any Loan Document. In addition, each Payee will deliver such forms promptly
upon learning of the obsolescence or invalidity of any forms previously delivered by such
Payee; provided, however, that a Payee shall not be obligated to deliver such additional
forms claiming complete exemption from U.S. federal withholding tax on all payments under
the Loan Documents pursuant to this sentence if it is unable to deliver such forms as a
result of a change in statute, tax, treaty or regulation since the date of any U.S. Internal
Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI, as applicable,
previously delivered by such Payee. In addition, each Payee shall deliver, to the extent
legally entitled to do so, upon reasonable request by the Borrower, to the Borrower and the
Administrative Agent, such other original, accurate and duly executed forms and documents as
may be reasonably required to establish the legal entitlement of such Payee to an exemption
for withholding with respect to payments under this Agreement or any other Loan Documents.
The Borrower shall not be required to pay additional amounts to any Payee pursuant to this
Section 2.14 to the extent that the obligation to pay such additional amounts would not have
arisen but for the failure of such Payee to comply with this Section 2.14(c).




     (d) The amount that the Borrower shall be required to pay to any Payee pursuant to
Section 2.14(a) or (b) shall be reduced by the amount of any refund, credit or allowance
which such Payee receives in respect of Taxes as to which it has received additional amounts
or has been indemnified by the Borrower as reasonably determined by such Payee; provided,
however, that (i) such Payee’s determination of the amount of such refund, credit or
allowance and the date on which it is received shall be conclusive, absent manifest error,
(ii) no Payee shall be obliged to disclose information regarding its tax affairs or tax
computations, (iii) nothing herein shall interfere with a Payee’s right to manage its tax
affairs in whatever manner it sees fit, and (iv) if such Payee shall subsequently determine
that it has lost the benefit of all or a portion of such refund, credit or allowance, the
Borrower shall promptly remit to such Payee the amount certified by such Payee to be the
amount necessary to restore such Payee to the position it would have been in if no payment
of such refund, credit or allowance or such portion thereof, as applicable, had been made
pursuant to this Section 2.14(d).




     (e) If the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts a claim that
the Administrative Agent or the Borrower did not properly withhold tax from amounts paid to
or for the account of any Lender (because the appropriate form, if any, required to be
delivered under paragraph (c) above was not delivered or properly completed, because such
Lender failed to notify the Administrative Agent or the Borrower of a change in
circumstances which rendered its exemption from withholding ineffective, or due to any other
act, or failure to act, of such Lender), such Lender shall indemnify the Administrative
Agent or the Borrower, as applicable, fully for all amounts paid, directly or indirectly, by
the Administrative Agent or the Borrower, as applicable, as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any jurisdiction
on amounts payable to the Administrative Agent or the Borrower, as applicable, under this
subsection, together with all costs and expenses related thereto (including attorneys fees
and time charges of attorneys for the Administrative Agent or the Borrower, as applicable,
which attorneys may be employees of the Administrative Agent or the Borrower, as
applicable). The obligations of the Lender under this Section 2.14(e) shall survive the
payment of the Obligations and termination of this Agreement.




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Section 2.15 Capital Adequacy.



If any Lender determines at any time that its Return has been reduced as a result of any Capital
Adequacy Rule Change, that Lender may require the Borrower to pay it the amount necessary to
restore its Return to what it would have been had there been no Capital Adequacy Rule Change. For
purposes of this Section:





     (a) “Return”, for any period, means the percentage determined by dividing (i) the sum
of interest and ongoing fees earned by a Lender under this Agreement during such period, by
(ii) the average capital that Lender is required to maintain during such period as a result
of its being a party to this Agreement, as determined by that Lender based upon its total
capital requirements and a reasonable attribution formula that takes account of the Capital
Adequacy Rules then in effect. Return may be calculated for each calendar quarter and for
the shorter period between the end of a calendar quarter and the date of termination in
whole of this Agreement.




     (b) “Capital Adequacy Rule” means any law, rule, regulation or guideline regarding
capital adequacy that applies to any Lender, or the interpretation thereof by any
governmental or regulatory authority. Capital Adequacy Rules include rules requiring
financial institutions to maintain total capital in amounts based upon percentages of
outstanding loans, binding loan commitments and letters of credit.




     (c) “Capital Adequacy Rule Change” means any change in any Capital Adequacy Rule
occurring after the date of this Agreement, but the term does not include any changes in
applicable requirements that at the date hereof are scheduled to take place under the
existing Capital Adequacy Rules or any increases in the capital that any Lender is required
to maintain to the extent that the increases are required due to a regulatory authority’s
assessment of the financial condition of that Lender.




     (d) “Lender” includes (but is not limited to) the Lenders, as defined elsewhere in this
Agreement; any participant in the loans made hereunder (to the extent provided in Section
8.11 only); and any bank holding company with respect to any of the foregoing.


The initial notice sent by a Lender shall be sent as promptly as practicable after that Lender
learns that its Return has been reduced, shall include a demand for payment of the amount necessary
to restore that Lender’s Return for the quarter in which the notice is sent and, if applicable, the
preceding quarter, and shall state in reasonable detail the cause for the reduction in its Return
and its calculation of the amount of such reduction. Thereafter, that Lender may send a new notice
with respect to each calendar quarter setting forth the calculation of the reduced Return for that
quarter and including a demand for payment of the amount necessary to restore its Return for that
quarter. In such event, the Borrower shall pay the Lender such amount within 30 days after demand
by such Lender. A Lender’s calculation in any such notice shall be conclusive and binding absent
demonstrable error. A Lender shall not make demand hereunder unless that Lender is generally
imposing such increased costs on its similarly situated customers. No Lender may demand any
compensation hereunder more than 45 days following the end of the quarter for which compensation is
sought.




Section 2.16 Substitution of Lender.



Upon the receipt by the Company from any Lender (an “Affected Lender”) of a notice of illegality
under Section 2.3(d) or a claim for compensation under Sections 2.13(a), 2.14 or 2.15, the Company
may: (a) request that one or more of the other Lenders assume all or part of such Affected Lender’s
Term Loans and Commitment (which request each such other Lender may decline or agree to in its sole
discretion); or (b) designate a replacement bank or other entity satisfactory to the Company to
acquire and assume all or part of such Affected Lender’s Term Loans and Commitment at the face
amount thereof (a “Substitute
Lender”). Any such designation of a Substitute Lender under clause (b) shall be subject to


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the prior written consent of the Administrative Agent (which consent shall not unreasonably be
withheld). Any transfer of Term Loans or Commitments pursuant to this Section shall be made in
accordance with Section 8.10, and the Affected Lender shall be entitled to payment in full of the
principal amount of its outstanding Term Loans, all accrued interest thereon, and all accrued fees
to the date of such transfer.




ARTICLE III

Conditions Precedent




Section 3.1 Initial Conditions Precedent.



The obligation of the Lender Parties to make any Term Loan is subject to the condition precedent
that the Administrative Agent shall have received, on or before the day of the first Term Loan
(and, in any event, on or before October 15, 2008), all of the following, in form and substance
satisfactory to each Lender Party:





     (a) This Agreement, duly executed by the Company, the Administrative Agent and each of
the Lenders.




     (b) The Term Notes, dated the date hereof, properly executed on behalf of the Company.




     (c) The Fee Letter, properly executed on behalf of the Company.




     (d) A certificate of the secretary or an assistant secretary of the Company (i)
certifying that the execution, delivery and performance of the Loan Documents and other
documents contemplated hereunder have been duly approved by all necessary action of the
Governing Board of the Company, and attaching true and correct copies of the applicable
resolutions granting such approval, (ii) certifying that attached to such certificate are
true and correct copies of the Organizational Documents of the Company, together with such
copies, and (iii) certifying the names of the officers of the Company who are authorized to
sign the Loan Documents and other documents contemplated hereunder, together with the true
signatures of such officers.




     (e) A certificate of good standing of the Company, dated not more than ten days before
such date.




     (f) A signed copy of an opinion of counsel for the Company, addressed to the Lenders in
substantially the form of Exhibit D hereto.




     (g) All fees required to be paid as of the date hereof under this Agreement or the Fee
Letter.




     (h) Such other documents as the Administrative Agent or the Required Lenders may
reasonably deem necessary or advisable in connection with the initial Term Loans.



Section 3.2 Conditions Precedent to All Term Loans.



The obligation of the Lender Parties to provide any Term Loan is subject to the further conditions
precedent that on the date of such Term Loan:





     (a) The representations and warranties contained in Article IV are correct on and as of
the date of such Term Loan as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.



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     (b) The Borrower has delivered to the Administrative Agent a certificate in the form of
Exhibit F hereto, duly executed by a person authorized to request Term Loans on behalf of
the Borrower.




     (c) No event has occurred and is continuing, or would result from such Term Loan, which
constitutes a Default or an Event of Default.



ARTICLE IV

Representations and Warranties



The Company represents and warrants to the Lenders as follows:




Section 4.1 Corporate Existence and Power.



The Company and its Subsidiaries are each corporations duly incorporated, validly existing and in
good standing under the laws of their respective jurisdictions of incorporation, and are each duly
licensed or qualified to transact business in all jurisdictions where the character of the property
owned or leased or the nature of the business transacted by them makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified (i) will not
permanently preclude the Company or any Subsidiary from maintaining any material action in any such
jurisdiction even though such action arose in whole or in part during the period of such failure,
and (ii) will not result in any other Material Adverse Change. The Company has all requisite power
and authority, corporate or otherwise, to conduct its business, to own its properties and to
execute and deliver, and to perform all of its obligations under, the Loan Documents.




Section 4.2 Authorization of Borrowing; No Conflict as to Law or Agreements.



The execution, delivery and performance by the Borrower of the Loan Documents, the borrowings from
time to time hereunder, the issuance of the Term Notes, and the consummation of the transactions
herein and therein contemplated, have been duly authorized by all necessary corporate action and do
not and will not (i) require any consent or approval of the stockholders of the Borrower, or any
authorization, consent, approval, order, filing, registration or qualification by or with any
governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
other than those consents described in Schedule 4.2, each of which has been obtained and is in full
force and effect, (ii) violate any provision of any law, rule or regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve System and Section 7 of
the Exchange Act or any regulation promulgated thereunder) or of any order, writ, injunction or
decree presently in effect having applicability to the Borrower or of the Organizational Documents
of the Borrower, (iii) result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other material agreement, lease or instrument to which the Company or any
Subsidiary is a party or by which it or its properties may be bound or affected, or (iv) result in,
or require, the creation or imposition of any Lien or other charge or encumbrance of any nature
upon or with respect to any of the properties now owned or hereafter acquired by the Company or any
Subsidiary.




Section 4.3 Legal Agreements.



This Agreement and the other Loan Documents constitute the legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their respective terms, except to
the extent that such enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally or by general equitable principles.




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Section 4.4 Subsidiaries.



Schedule 4.4 hereto is a complete and correct list of all Subsidiaries as of the date of this
Agreement and of the percentage of the ownership of the Company or any other Subsidiary in each as
of the date of this Agreement. Except as otherwise indicated in that Schedule, all shares of each
Subsidiary owned by the Company or by any such other Subsidiary are validly issued and fully paid
and nonassessable.




Section 4.5 Financial Condition.



The Company has heretofore furnished to the Lenders the audited consolidated financial statements
of the Company and its Subsidiaries for the year ended December 31, 2007, and its unaudited
quarterly consolidated financial statements for the quarter ended June 30, 2008. Those financial
statements fairly present in all material respects the financial condition of the Company on the
date thereof and the results of its operations and cash flows for the period then ended, and were
prepared in accordance with GAAP. The information, exhibits and reports furnished by the Company to
the Lender Parties, taken as a whole, in connection with the negotiation of or compliance with the
Loan Documents did not contain any material misstatement of fact or omit to state a material fact
or any fact necessary to make the statements contained therein not misleading.




Section 4.6 Adverse Change.



There has been no Material Adverse Change between December 31, 2007 and the date of this Agreement.




Section 4.7 Litigation.



Except as set forth in Schedule 4.7, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any Subsidiary or the
properties of the Company or any Subsidiary before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which could reasonably
be expected to effect a Material Adverse Change. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected to effect a Material
Adverse Change, the Company knows of no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 4.5.




Section 4.8 Hazardous Substances.



Except as set forth in Schedule 4.8, to the best of the Company’s knowledge, (i) neither the
Company nor any Subsidiary or other Person has ever caused or permitted any Hazardous Substance to
be disposed of on, under or at any real property which is operated by the Company or any Subsidiary
or in which the Company or any Subsidiary has any interest, except to the extent that such disposal
can not reasonably be expected to result in a Material Adverse Change; and (ii) no such real
property has ever been used (either by the Company or by any Subsidiary or other Person) as a dump
site or permanent or temporary storage site for any Hazardous Substance in a manner that could
reasonably be expected to result in a Material Adverse Change.




Section 4.9 Regulation U.



Neither the Company nor any Subsidiary is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of any Term Loan will be used
to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing
or carrying any margin stock.




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Section 4.10 Taxes.



The Company and its Subsidiaries have each paid or caused to be paid to the proper authorities when
due all federal, state and local taxes required to be withheld and paid by them. The Company and
its Subsidiaries have each filed all federal, state and local tax returns which to the knowledge of
the officers of the Company or any Subsidiary are required to be filed, and the Company and its
Subsidiaries have each paid or caused to be paid to the respective taxing authorities all taxes as
shown on said returns or on any assessment received by it to the extent such taxes have become due,
other than taxes whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which the Company or applicable Subsidiary has provided adequate
reserves in accordance with GAAP.




Section 4.11 Burdensome Restrictions.



Neither the Company nor any Subsidiary is a party to or bound by any agreement, or subject to any
restriction in any Organizational Document, or any requirement of law, which would reasonably be
expected to effect a Material Adverse Change. Neither the Company nor any Subsidiary is a party to
any presently effective agreement that, if entered into after the date hereof, would constitute a
breach of Section 6.7.




Section 4.12 Titles and Liens.



The Company or one of its Subsidiaries has good title to each of the properties and assets material
to the operations of the Company and its Subsidiaries, taken as a whole, which it purports to own
or which are reflected as owned on its books and records, in each case free and clear of all Liens
and encumbrances, except for Liens and encumbrances permitted by Section 6.1 and covenants,
restrictions, rights, easements and irregularities in title which do not materially interfere with
the business or operations of the Company and its Subsidiaries taken as a whole.




Section 4.13 ERISA.



No Plan will have an accumulated funding deficiency (as such term is defined in Section 302 of
ERISA) in excess of $10,000,000 as of the last day of the most recent fiscal year of such Plan
ended prior to the date hereof, and no liability to the Pension Benefit Guaranty Corporation or the
Internal Revenue Service in excess of such amount has been, or is expected by the Company or any
Subsidiary or ERISA Affiliate to be, incurred with respect to any Plan that could become a
liability of the Company or any Subsidiary. Except as disclosed in Company’s financial statements,
neither the Company nor any Subsidiary has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan in excess of $10,000,000, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA.




Section 4.14 Investment Company Act.



The Borrower is not and will not at any time be an “investment company,” as such term is defined in
the Investment Company Act.




Section 4.15 Solvency.



The Borrower is and, upon the making of any Term Loan will be, Solvent.




Section 4.16 Swap Obligations.



Neither the Company nor any of its Subsidiaries has incurred any outstanding obligations under any
Swap Contracts, other than Permitted Swap Obligations.




-23-









 








Section 4.17 Insurance.



The properties of the Company and its Subsidiaries are insured with responsible and reputable
insurance companies not Affiliates of the Company, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Company and such Subsidiaries operate.




Section 4.18 Compliance With Laws.



The Company and its Subsidiaries have complied with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any instrumentality or agency
thereof having jurisdiction over the conduct of their respective businesses or the ownership of
their respective properties, assets and rights, where failure to comply would result in a Material
Adverse Change.




Section 4.19 No Contractual Default.



Neither the Company nor any Subsidiary is in violation of any term of any contract, agreement,
judgment or decree, the violation of which would (individually or together with all other such
violations in existence) result in a Material Adverse Change.




ARTICLE V

Affirmative Covenants of the Company



So long as any Obligations (other than obligations of indemnification described in Section 9.5 that
are not then due and payable) remain unpaid or any Commitment shall be outstanding, the Company
will comply with the following requirements, unless the Required Lenders shall otherwise consent in
writing:




Section 5.1 Financial Statements.



The Company will deliver to the Administrative Agent and each Lender:





     (a) As soon as available, and in any event within 90 days after the end of each fiscal
year of the Company, a copy of the annual audit report of the Company and its Subsidiaries
prepared by nationally recognized independent certified public accountants, which annual
report shall include the balance sheet of the Company and its Subsidiaries as at the end of
such fiscal year and the related statements of income, shareholders’ equity and cash flows
of the Company and its Subsidiaries for the fiscal year then ended, all presented on a
consolidated basis in reasonable detail and all prepared in accordance with GAAP.




     (b) As soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of the Company, the balance sheet of the Company
and its Subsidiaries as at the end of such quarter and related statements of earnings and
cash flows of the Company and its Subsidiaries for such quarter and for the year to date, in
reasonable detail and prepared on a consolidated basis in accordance with GAAP, subject to
year-end adjustments.




     (c) Concurrent with the delivery of any financial statements under paragraph (a) or
(b), a Compliance Certificate, duly executed by the chief financial officer or treasurer of
the Company.




     (d) Promptly after the sending or filing thereof, copies of all regular and periodic
financial reports which the Company or any Subsidiary shall file with the SEC or any
national securities exchange.




     (e) Immediately after the commencement thereof, notice in writing of all litigation and
of all proceedings before any governmental or regulatory agency affecting the Company or



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any Subsidiary of the type described in Section 4.7 or which seek a monetary recovery
against the Company or any Subsidiary combined in excess of $10,000,000.




     (f) As promptly as practicable (but in any event not later than five Business Days)
after an officer of the Company obtains knowledge of the occurrence of any Default or Event
of Default, notice of such occurrence, together with a detailed statement by a responsible
officer of the Company of the steps being taken by the Company to cure the effect of such
event.




     (g) Promptly upon becoming aware of any Reportable Event or the occurrence of a
prohibited transaction (as defined in Section 4975 of the Internal Revenue Code or Section
406 of ERISA) in connection with any Plan or any trust created thereunder, which could
reasonably be expected to result in a liability to Company or any Subsidiary in excess of
$10,000,000, a written notice specifying the nature thereof, what action the Company has
taken, is taking or proposes to take with respect thereto, and, when known, any action taken
or threatened by the Internal Revenue Service, the Pension Benefit Guaranty Corporation or
the Department of Labor with respect thereto.




     (h) Promptly upon their receipt, copies of (a) all notices received by the Company, any
Subsidiary or ERISA Affiliate of the Pension Benefit Guaranty Corporation’s intent to
terminate any Plan or to have a trustee appointed to administer any Plan, and (b) all
notices received by the Company, any Subsidiary or any ERISA Affiliate from a Multiemployer
Plan concerning the imposition or amount of withdrawal liability imposed pursuant to Section
4202 of ERISA, which withdrawal liability individually or in the aggregate exceeds
$10,000,000.




     (i) All notices required to be delivered under Section 9.13.




     (j) Such other information respecting the financial condition and results of operations
of the Company or any Subsidiary as any Lender may from time to time reasonably request.



Section 5.2 Books and Records; Inspection and Examination.



The Company will keep, and will cause each Subsidiary to keep, accurate books of record and account
for itself in which true and complete entries will be made in accordance with GAAP. Upon request of
any Applicable Party, as defined below, the Company will, and will cause each Subsidiary to, give
any representative of such Applicable Party access to, and permit such representative to examine,
copy or make extracts from, any and all books, records and documents in its possession (except to
the extent that such access is restricted by law or by a bona fide non-disclosure agreement not
entered into primarily for the purpose of evading the requirements of this Section), to inspect any
of its properties (subject to such physical security requirements as the Company or the applicable
Subsidiary may require) and to discuss its affairs, finances and accounts with any of its principal
officers, all at such times during normal business hours, upon reasonable notice, and as often as
such Applicable Party may reasonably request. As used in this Section 5.2, “Applicable Party” means
(i) so long as any Event of Default has occurred and is continuing, the Administrative Agent or any
Lender, and (ii) at all other times, the Administrative Agent. The provisions of this Section 5.2
shall in no way preclude any Lender from discussing the general affairs, finances and accounts of
the Company with any of its principal officers at such times during normal business hours and as
often as may be agreed to between the Company and such Lender.




Section 5.3 Compliance with Laws.



The Company will, and will cause each Subsidiary to, comply with the requirements of applicable
laws and regulations, the noncompliance with which would effect a Material Adverse Change. In
addition, and without limiting the foregoing sentence, the Company will (i) ensure, and cause each
Subsidiary to


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ensure, that no Person who owns a controlling interest in or otherwise controls the Company or any
Subsidiary is or shall be listed on the Specially Designated Nationals and Blocked Person List or
other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of
the Treasury or included in any Executive Orders, (ii) not use or permit the use of the proceeds of
any Term Loan to violate any of the foreign asset control regulations of OFAC or any enabling
statute or Executive Order relating thereto, and (iii) comply, and cause each Subsidiary to comply,
with all applicable Bank Secrecy Act (“BSA”) laws and regulations, as amended.




Section 5.4 Payment of Taxes and Other Claims.



The Company will, and will cause each Subsidiary to, pay or discharge, when due, (a) all taxes,
assessments and governmental charges levied or imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach thereto, (b) all
federal, state and local taxes required to be withheld by it, and (c) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge upon any properties
of the Company or any Subsidiary; provided, that neither the Company nor any Subsidiary shall be
required to pay any such tax, assessment, charge or claim (i) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings and for which the Company or
such Subsidiary has provided adequate reserves in accordance with GAAP or (ii) where failure to pay
such tax, assessment, charge or claim could not reasonably be expected to result in a liability in
excess of $5,000,000.




Section 5.5 Maintenance of Properties.



The Company will keep and maintain, and will cause each Subsidiary to keep and maintain, all of its
properties necessary or useful in its business in good condition, repair and working order;
provided, however, that nothing in this Section shall prevent the Company or any Subsidiary from
discontinuing the operation and maintenance of, or disposing of, any of its properties if (i) (A)
such discontinuance or disposition is, in the reasonable judgment of the Company or that
Subsidiary, desirable in the conduct of its business, and (B) no Default or Event of Default exists
at the time of, or will be caused by, such discontinuance or disposition or (ii) such
discontinuance or disposition relates to obsolete or worn-out property.




Section 5.6 Insurance.



The Company will, and will cause each Subsidiary to, obtain and maintain insurance with insurers
reasonably believed by the Company or such Subsidiary to be responsible and reputable, in such
amounts and against such risks as are consistent with sound business practice.




Section 5.7 Preservation of Corporate Existence.



The Company will, and will cause each Subsidiary to, preserve and maintain its corporate existence
and all of its rights, privileges and franchises; provided, however, that neither the Company nor
any Subsidiary shall be required to preserve any of its rights, privileges and franchises or to
maintain its corporate existence if (i) its Governing Board shall reasonably determine that the
preservation or maintenance thereof is no longer desirable in the conduct of the business of the
Company or that Subsidiary, and (ii) no Default or Event of Default exists upon, or will be caused
by, the termination of such right, privilege, franchise or existence; provided, further, that in no
event shall the foregoing be construed to permit the Company to terminate its corporate existence.




Section 5.8 Use of Proceeds.



The Company will, and will cause each Subsidiary to, use the proceeds of the Term Loans for general
corporate purposes. The Company will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Term Loans to purchase or carry any “margin stock” (as defined in Regulation U) or
to make any


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acquisition of any corporation, limited liability company or other business entity unless, prior to
making such acquisition, the Company or such Subsidiary shall have obtained written approval from
the Governing Board of such entity.




Section 5.9 Delivery of Subsidiary Guaranties.



Concurrent with the designation by the Borrower of any Subsidiary as a “Designated Subsidiary”
under Section 9.2 of the Revolving Credit Agreement, the Borrower will deliver to the
Administrative Agent (i) a guaranty, executed by such Subsidiary, in form and substance
satisfactory to the Administrative Agent, guarantying payment of the Obligations, (ii) a
certificate of the secretary or other appropriate officer of such Subsidiary, in form and substance
satisfactory to the Administrative Agent, (A) certifying that the execution, delivery and
performance of that guaranty have been duly approved by all necessary action of the Governing Board
of such Subsidiary, and attaching true and correct copies of the applicable resolutions granting
such approval, (B) certifying that attached to such certificate are true and correct copies of the
Organizational Documents of such Subsidiary, together with such copies, and (C) certifying the
names of the officers of such Subsidiary that are authorized to sign that guaranty; and (iii) an
opinion of counsel to that Subsidiary, opining as to the due execution, delivery and enforceability
of such guaranty, in form and substance satisfactory to the Administrative Agent.




ARTICLE VI

Negative Covenants



So long as any Obligations (other than obligations of indemnification described in Section 9.5 that
are not then due and payable) remain unpaid or any Commitment shall be outstanding, the Company
agrees that, without the prior written consent of the Required Lenders:




Section 6.1 Liens.



The Company will not create, incur, assume or suffer to exist any Lien on any of its assets, now
owned or hereafter acquired, and will not permit any Subsidiary to create, incur, assume or suffer
to exist any Lien on any of such Subsidiary’s assets, now owned or hereafter acquired, except the
following:





     (a) Liens for taxes or assessments or other governmental charges to the extent not
required to be paid by Section 5.4.




     (b) Materialmen’s, merchants’, carriers’ worker’s, repairer’s, or other like liens
arising in the ordinary course of business to the extent not required to be paid by Section
5.4.




     (c) Pledges or deposits to secure obligations under worker’s compensation laws,
unemployment insurance, social security and other similar laws, or to secure the performance
of bids, tenders, contracts (other than for the repayment of borrowed money) or leases or to
secure statutory obligations or surety or appeal bonds, or to secure indemnity, performance
or other similar bonds in the ordinary course of business.




     (d) Zoning restrictions, easements, licenses, restrictions on the use of real property
or minor irregularities in title thereto, which do not materially impair the use of such
property in the operation of the business of the Company and its Subsidiaries taken as a
whole or the value of such property for the purpose of such business.




     (e) Purchase money Liens upon or in property acquired after the date hereof, provided
that (i) such Lien is created not later than the 120th day following the acquisition or
completion of construction of such property by the Company or its applicable Subsidiary, and
(ii) no such Lien extends or shall extend to or cover any property of the Company or its
Subsidiaries other than the property then being acquired, fixed improvements then or
thereafter erected thereon and improvements and modifications thereto necessary to maintain such
properties in working order.



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     (f) Liens granted by any Acquisition Target prior to the acquisition by the Company or
any Subsidiary of any interest in such Acquisition Target or its assets, so long as (i) such
Lien was granted by the Acquisition Target prior to such acquisition and not in
contemplation thereof, and (ii) no such Lien extends to any assets of the Company or any
Subsidiary other than the assets of the Acquisition Target and improvements and
modifications thereto necessary to maintain such properties in working order or, in the case
of an asset transfer, the assets so acquired by the Company or the applicable Subsidiary and
improvements and modifications thereto.




     (g) Liens (other than those described in subsection (e)) securing any indebtedness for
borrowed money in existence on the date hereof and listed in Schedule 6.1 hereto.




     (h) Liens securing any refinancing of indebtedness secured by the Liens described in
paragraphs (e) and (f), so long as the amount of such indebtedness secured by any such Lien
does not exceed the amount of such refinanced indebtedness immediately prior to the
refinancing and such Liens do not extend to assets other than those encumbered prior to such
refinancing and improvements and modifications thereto.




     (i) Liens granted by any Subsidiary of the Company in favor of the Company or any
wholly-owned Subsidiary of the Company.




     (j) Liens on patents, patent applications, trademarks, trademark applications, trade
names, copyrights, technology and know-how to the extent such Liens arise from the granting
(a) of exclusive licenses with respect to the foregoing if such licenses relate to either
(x) intellectual property which is immaterial and not necessary for the on-going conduct of
the businesses of the Company and its Subsidiaries or (y) uses that would not materially
restrict the conduct of the on-going businesses of the Company and its Subsidiaries and (b)
of non-exclusive licenses to use any of the foregoing to any Person, in any case in the
ordinary course of business of the Company or any of its Subsidiaries.




     (k) Possessory Liens in favor of lessees or sublessees of properties leased or
subleased by the Company or any of its Subsidiaries to such Persons.




     (l) Liens not otherwise described in this Section 6.1, so long as the aggregate amount
of indebtedness secured by all such Liens does not at any time exceed 5% of Adjusted Net
Worth.



Section 6.2 Priority Debt.



The Company will not, and will not permit any Subsidiary to, create, issue, assume, guarantee or
otherwise incur or in any manner become liable in respect of any Priority Debt, unless at the time
of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto
and to the application of the proceeds thereof, the aggregate amount of all Priority Debt would not
exceed 20% of Adjusted Net Worth.




Section 6.3 Sale of Assets.



The Company will not, and will not permit any Subsidiary to, sell, lease, assign, transfer or
otherwise dispose of all or a Material Part of the Assets of the Company and its Subsidiaries
(whether in one transaction or in a series of transactions) to any other Person other than (i) in
the ordinary course of business, (ii) any transfer of an interest in accounts or notes receivable
on a limited recourse basis; provided, that (w) such transfer qualifies as a sale under
GAAP, (x) the amount of such financing does not


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exceed $100,000,000 in the aggregate after the date of this Agreement, (y) at least 80% of the
proceeds of such transfers are paid in cash and (z) the Company and its Subsidiaries do not retain
a residual liability therefor in excess of 10% of the amount of any such financing, and (iii)
dispositions of property no longer used or useful in the business of the Company or any Subsidiary;
provided, however, that a wholly-owned Subsidiary of the Company may sell, lease, or transfer all
or a substantial part of its assets to the Company or another wholly-owned Subsidiary of the
Company, and the Company or such other wholly-owned Subsidiary, as the case may be, may acquire all
or substantially all of the assets of the Subsidiary so to be sold, leased or transferred to it,
and any such sale, lease or transfer shall not be included in determining if the Company and/or its
Subsidiaries disposed of a Material Part of the Assets. For purposes hereof, “Material Part of the
Assets” means assets with a net book value in excess of 10% of the total assets of the Company and
its Subsidiaries on a consolidated basis as determined in accordance with GAAP, as shown on the
most recent balance sheet of the Company and its Subsidiaries available as of the date of
determination.




Section 6.4 Consolidation and Merger.



The Company will not consolidate with or merge into any Person, or permit any other Person to merge
into it, or acquire (in a transaction analogous in purpose or effect to a consolidation or merger)
all or substantially all of the assets of any other Person; provided, however, that the
restrictions contained in this Section shall not apply to or prevent the consolidation or merger of
(a) any Person with, or a conveyance or transfer of its assets to, the Company so long as (i) no
Default or Event of Default exists at the time of, or will be caused by, such consolidation,
merger, conveyance or transfer, and (ii) the Company shall be the continuing or surviving
corporation, or (b) the merger of a wholly-owned Subsidiary with the Company, provided that the
Company is the legally surviving entity, or (c) the merger of a wholly-owned Subsidiary with
another wholly-owned Subsidiary.




Section 6.5 Hazardous Substances.



The Company will not, and will not permit any Subsidiary to, cause or permit any Hazardous
Substance to be disposed of in any manner, or on, under or at any real property which is operated
by the Company or any Subsidiary or in which the Company or any Subsidiary has any interest, if
such disposition could reasonably be expected to result in a Material Adverse Change.




Section 6.6 Restrictions on Nature of Business.



The Company and its Subsidiaries will not engage in any business materially different from those
businesses in which they are presently engaged.




Section 6.7 Restrictive Agreements.



The Company will not, and will not permit any Subsidiary to, enter into any agreement (excluding
this Agreement) limiting the ability of any Subsidiary to make any payments directly or indirectly
to the Company, by way of dividends, advances, repayments of loans or advances, reimbursements of
management and any other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Company.




Section 6.8 Transactions with Affiliates.



Neither the Company nor any Subsidiary will make any loan or capital contribution to, or any other
investment in, any Affiliate, or pay any dividend to any Affiliate, or make any other cash transfer
to any Affiliate; provided, however, that the foregoing shall not prohibit any of the following:




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     (a) Transactions made upon fair and reasonable terms no less favorable to the Company
or applicable Subsidiary than would obtain, taking into account all facts and circumstances,
in a comparable arm’s-length transaction with a Person not an Affiliate.




     (b) Loans or contributions of capital to Subsidiaries, so long as such transaction (if
constituting a sale, lease, assignment, transfer or other disposition of assets) does not
violate Section 6.3 of this Agreement.



Section 6.9 Leverage Ratio.



The Company will not permit its Leverage Ratio, determined as at the end of each fiscal quarter of
the Company, to be greater than 3.50 to 1.




Section 6.10 Fixed Charge Coverage Ratio.



The Company will not permit its Fixed Charge Coverage Ratio, determined as at the end of each
fiscal quarter of the Company, to be less than 2.00 to 1.




Section 6.11 Adjusted Net Worth.



The Company will not permit its Adjusted Net Worth, determined as of the end of each fiscal quarter
of the Company, to be less than the sum of (i) $575,436,400, plus (ii) an amount equal to 50% of
the consolidated net income of the Company and its Subsidiaries (with no deduction for any
quarterly loss) in each fiscal quarter ending on or after September 30, 2008.




Section 6.12 Investments.



Neither the Company nor any of its Subsidiaries will purchase or hold beneficially any Investment,
except:





     (a) Investments in its Subsidiaries, including investments in connection with
acquisitions.




     (b) Existing investments described on Schedule 6.12.




     (c) Investments in commercial paper of corporations organized under the laws of the
United States or any state thereof maturing in 270 days or less from the date of issuance
which, at the time of acquisition by the Company or any Subsidiary, is accorded a rating of
“A-1” by S&P or “P-1” by Moody’s.




     (d) Investments in direct obligations of the United States of America or any agency or
instrumentality of the United States of America, the payment or guarantee of which
constitutes a full faith and credit obligation of the United States of America, in either
case, maturing within twelve months from the date of acquisition thereof.




     (e) Investments in certificates of deposit and time deposits maturing within one year
from the date of issuance thereof, either (i) issued by a bank or trust company organized
under the laws of the United States or any state thereof, Canada or any province thereof, or
any member state of the European Union as of April 30, 2004 (other than Greece), having in
each such case capital, surplus and undivided profits aggregating at least U.S.$100,000,000
(or the equivalent under local currency), provided that at the time of acquisition thereof
by the Company or a Subsidiary, the senior unsecured long-term debt of such bank or trust
company or of the holding company of such bank or trust company is rated “A” or better by
S&P, or “A2” or better by Moody’s, or (ii) issued by any bank or trust company organized
under the laws of the United



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States or any state thereof to the extent that such Investments are fully insured by
the Federal Depository Insurance Corporation.




     (f) Investments in repurchase agreements with respect to any Investment described in
paragraph (d) above entered into with a depository institution or trust company of the type
described in (e) above acting as principal, so long as such repurchase agreements are by
their terms to be performed by the repurchase obligor and such repurchase agreements are
deposited with a bank or trust company of the type described in clause (e) above.




     (g) Investments in (i) variable rate demand notes of any state of the United States or
any municipality organized under the laws of any state of the United States or any political
subdivision thereof which, at the time of acquisition by the Company, are accorded either of
the two highest ratings by S&P or Moody’s, Inc., provided that in each such case, such notes
permit the Company to require the issuer thereof to repurchase such notes within not more
than 12 months from the date of acquisition thereof by the Company, and (ii) notes of any
state of the United States or any municipality thereof organized under the laws of any state
of the United States or any political subdivision thereof which are provided unconditional
credit support by, and are unconditionally putable within a period not to exceed one year
from the date of acquisition thereof by the Company or applicable Subsidiary to financial
institutions rated “A” or better by S&P or Moody’s.




     (h) Investments in (i) preferred stocks which, at the date of acquisition by the
Company or any Subsidiary, are accorded one of the three highest ratings by S&P or Moody’s
or (ii) adjustable rate preferred stock funds rated “A-” or better by S&P or “A-3” or better
by Moody’s.




     (i) Investments by any Foreign Subsidiary in direct obligations of the country in which
such Foreign Subsidiary is organized, in each such case maturing within 12 months from the
date of acquisition thereof by such Foreign Subsidiary.




     (j) Advances in the form of progress payments, prepaid rent or security deposits made
or incurred in the ordinary course of business.




     (k) Investments of the Company and its Subsidiaries not described in the foregoing
paragraphs (a) through (j), so long as the aggregate amount of all such Investments shall
not at any time exceed the greater of (i) U.S. $50,000,000 or (ii) 10% of the aggregate
amount of the capital stock accounts (net of treasury stock, at cost) plus (or minus in the
case of a deficit) the surplus and retained earnings of the Company as determined in
accordance with GAAP as at the time of making such Investment.



Section 6.13 Guarantees.



Neither the Company nor any of its Subsidiaries will assume, guarantee, endorse or otherwise become
directly or contingently liable in connection with any obligations of any other Person, except:





     (a) The endorsement of negotiable instruments by the Company or any of its Subsidiaries
for deposit or collection or similar transactions in the ordinary course of business.




     (b) Guaranties, endorsements and other direct or contingent liabilities in connection
with the obligations of other Persons in existence on the date hereof and listed in Schedule
6.13 hereto.



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     (c) Contingent obligations (A) of the Company with respect to obligations of its
Subsidiaries and (B) of any of the Company’s Subsidiaries with respect to obligations of the
Company or another such Subsidiary.




     (d) Contingent obligations with respect to surety, appeal and performance bonds
obtained by the Company or any of its Subsidiaries in the ordinary course of business.



ARTICLE VII

Events of Default, Rights and Remedies




Section 7.1 Events of Default.



“Event of Default”, wherever used herein, means any one of the following events:





     (a) Default in the payment of any principal of any Term Loan when it becomes due and
payable; or default in the payment of any other Obligations when the same become due and
payable and the continuance of such default for five Business Days.




     (b) Default in the performance, or breach, of any covenant or agreement on the part of
the Company contained in any Financial Covenant or any of Sections 5.1(f), 6.1 through 6.4,
6.8, 6.12 or 6.13.




     (c) Default in the performance, or breach, of any covenant or agreement of the Borrower
in this Agreement or any other Loan Document (excluding any covenant or agreement a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with),
and the continuance of such default or breach for a period of 30 days after the
Administrative Agent, at the request of any Lender, has given notice to the Company
specifying such default or breach and requiring it to be remedied.




     (d) Any representation or warranty made by the Borrower in this Agreement or any other
Loan Document or by the Borrower (or any of its officers) in any certificate, instrument, or
statement contemplated by or made or delivered pursuant to or in connection with this
Agreement, shall prove to have been incorrect in any material respect when made.




     (e) The Borrower shall assert that any Loan Documents are not enforceable in accordance
with their terms.




     (f) An Event of Default, as defined in the Revolving Credit Agreement, shall occur.




     (g) A default in the payment when due (after giving effect to any applicable grace
periods) of principal or interest with respect to any item of Total Funded Debt of the
Company or any of its Subsidiaries (other than any Obligations or under the Revolving Credit
Agreement) if the aggregate amount of all such items of Total Funded Debt as to which such
payment defaults exist is not less than $10,000,000.




     (h) A default (other than a default described in paragraph (g)) under any agreement
relating to any item of Total Funded Debt of the Company or any Subsidiary (other than under
any of the Loan Documents or the Revolving Credit Agreement) or under any indenture or other
instrument under which any such agreement has been issued or by which it is governed and the
expiration of the applicable period of grace, if any, specified in such agreement if the
effect of such default is to cause or to permit the holder of such item of Total Funded Debt
(or trustee or agent on behalf of such holder) to cause such item of Total Funded Debt to
come due prior to its



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stated maturity (or to cause or to permit the counterparty in respect of a Swap
Contract to elect an early termination date in respect of such Swap Contract); provided,
however, that no Event of Default shall be deemed to have occurred under this paragraph if
the aggregate amount owing as to all such items of Total Funded Debt as to which such
defaults have occurred and are continuing is less than $10,000,000; provided further that if
such default shall be cured by the Company or such Subsidiary, or waived by the holders of
such items of Total Funded Debt or counterparties in respect of such Swap Contracts, in each
case prior to the commencement of any action under Section 7.2 and as may be permitted by
such evidence of indebtedness, indenture, other instrument, or Swap Contract, then the Event
of Default hereunder by reason of such default shall be deemed likewise to have been
thereupon cured or waived.




     (i) The Company or any Subsidiary shall be adjudicated a bankrupt or insolvent, or
admit in writing its inability to pay its debts as they mature, or make an assignment for
the benefit of creditors; or the Company or any Subsidiary shall apply for or consent to the
appointment of any receiver, trustee, or similar officer for it or for all or any
substantial part of its property; or such receiver, trustee or similar officer shall be
appointed without the application or consent of the Company or such Subsidiary, and such
appointment shall continue undischarged for a period of 60 days; or the Company or any
Subsidiary shall institute (by petition, application, answer, consent or otherwise) any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or otherwise) against the
Company or any Subsidiary and shall continue undischarged for 60 days; or any judgment,
writ, warrant of attachment or execution or similar process shall be issued or levied
against a substantial part of the property of the Company or any Subsidiary and such
judgment, writ, or similar process shall not be released, vacated, stayed or fully bonded
within 60 days after its issue or levy.




     (j) A petition shall be filed by the Company or any Subsidiary under the United States
Bankruptcy Code naming the Company or that Subsidiary as debtor; or an involuntary petition
shall be filed against the Company or any Subsidiary under the United States Bankruptcy
Code, and such petition shall not have been dismissed within 60 days after such filing; or
an order for relief shall be entered in any case under the United States Bankruptcy Code
naming the Company or any Subsidiary as debtor.




     (k) A Change of Control shall occur with respect to the Company.




     (l) The rendering against the Company or any Subsidiary of a final judgment, decree or
order for the payment of money if the amount of such judgment, decree or order, together
with the amount of all other such judgments, decrees and orders then outstanding, less (in
each case) the portion thereof covered by insurance proceeds, is greater than $5,000,000 and
if such judgment, decree or order remains unsatisfied and in effect for any period of 30
consecutive days without a stay of execution.




     (m) Any Plan shall have been terminated as a result of which the Company or any
Subsidiary or ERISA Affiliate has incurred an unfunded liability in excess of $10,000,000;
or a trustee shall have been appointed by an appropriate United States District Court to
administer any Plan or the Pension Benefit Guaranty Corporation shall have instituted
proceedings to terminate any Plan or to appoint a trustee to administer any Plan and in
either case such action could reasonably be expected to result in liability to the Company
or any Subsidiary in excess of $10,000,000, or the Company or any Subsidiary or ERISA
Affiliate shall have incurred withdrawal liability in excess of $10,000,000 in respect of
any Multiemployer Plan; or the Company or any Subsidiary or ERISA Affiliate shall have
incurred any joint and several liability



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to the Internal Revenue Service or the Department of Labor, or the Company or any
Subsidiary shall have incurred any other liability to the Internal Revenue Service or the
Department of Labor, in excess of $10,000,000 with respect to any Plan; or any Reportable
Event that the Required Lenders may determine in good faith could reasonably be expected to
constitute grounds for the termination of any Plan by the Pension Benefit Guaranty
Corporation, for the appointment by the appropriate United States District Court of a
trustee to administer any Plan or for the imposition of withdrawal liability with respect to
a Multiemployer Plan, and which, in any such case, could reasonably be expected to result in
liability to Company or any Subsidiary or ERISA Affiliate in excess of $10,000,000, shall
have occurred and be continuing 30 days after written notice to such effect shall have been
given to the Company by the Lenders.




     (n) Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any Material Part of the Assets (as
defined in Section 6.3) of the Company and its Subsidiaries.



Section 7.2 Rights and Remedies.



Upon the occurrence of an Event of Default or at any time thereafter until such Event of Default is
waived by the Required Lenders or cured, the Administrative Agent may, with the consent of the
Required Lenders, and shall, upon the request of the Required Lenders, exercise any or all of the
following rights and remedies:





     (a) The Administrative Agent may, by notice to the Company, declare the Commitments to
be terminated, whereupon the same shall forthwith terminate.




     (b) The Administrative Agent may, by notice to the Company, declare the entire unpaid
principal amount of the Obligations then outstanding, all interest accrued and unpaid
thereon, and all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Obligations, all such accrued interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower.




     (c) The Lenders may, without notice to the Borrower and without further action, apply
any and all money owing by any Lender to the Borrower to the payment of the Obligations then
outstanding, including interest accrued thereon, and of all other sums then owing by the
Borrower hereunder. For purposes of this paragraph (d), “Lender” means the Lenders, as
defined elsewhere in this Agreement, and any participant in the loans made hereunder;
provided, however, that each such participant, by exercising its rights under this paragraph
(d), agrees that it shall be obligated under Section 8.4 with respect to such payment as if
it were a Lender for purposes of that Section.




     (d) The Administrative Agent and the Lenders may exercise any other rights and remedies
available to them by law or agreement.


Notwithstanding the foregoing, upon the occurrence of an Event of Default described in Section
7.1(j) hereof (whether or not such Event of Default also arises under Section 7.1(i) hereof), the
Commitments shall terminate and the entire unpaid principal amount of the Obligations then
outstanding, all interest accrued and unpaid thereon, and all other amounts payable under this
Agreement shall be immediately due and payable without presentment, demand, protest or notice of
any kind.





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ARTICLE VIII

The Administrative Agent




Section 8.1 Authorization.



Each Lender and the holder of each Term Note irrevocably appoints and authorizes the Administrative
Agent to act on its behalf to the extent provided herein or in any document or instrument delivered
hereunder or in connection herewith, and to take such other action as may be reasonably incidental
thereto.




Section 8.2 Distribution of Payments and Proceeds.





     (a) After deduction of any costs of collection as hereinafter provided, the
Administrative Agent shall remit to each Lender that Lender’s Percentage of all payments of
principal and interest on the Term Loans that are received by the Administrative Agent under
the Loan Documents. Each Lender’s interest in the Loan Documents shall be payable solely
from payments, collections and proceeds actually received by the Administrative Agent under
the Loan Documents; and the Administrative Agent’s only liability to the Lenders hereunder
shall be to account for each Lender’s Percentage of such payments, collections and proceeds
in accordance with this Agreement. If the Administrative Agent is ever required for any
reason to refund any such payments, collections or proceeds, each Lender will refund to the
Administrative Agent, upon demand, its Percentage of such payments, collections or proceeds,
together with its Percentage of interest or penalties, if any, payable by the Administrative
Agent in connection with such refund. The Administrative Agent may, in its sole discretion,
make payment to the Lenders in anticipation of receipt of payment from the Borrower. If the
Administrative Agent fails to receive any such anticipated payment from the Borrower, each
Lender shall promptly refund to the Administrative Agent, upon demand, any such payment made
to it in anticipation of payment from the Borrower, together with interest for each day on
such amount until so refunded at a rate equal to the Federal Funds Rate for each such date.




     (b) Notwithstanding the foregoing, if any Lender has wrongfully refused to fund its
Percentage of any Borrowing , or if the principal balance of any Lender’s Obligations is for
any other reason less than its Percentage of the aggregate principal balances of the
Lenders’ Obligations then outstanding, the Administrative Agent may remit all payments
received by it to the other Lenders until such payments have reduced the aggregate amounts
owed by the Borrower to the extent that the aggregate amount owing to such Lender hereunder
is equal to its Percentage of the aggregate amount owing to all of the Lenders hereunder.
The provisions of this paragraph are intended only to set forth certain rules for the
application of payments, proceeds and collections in the event that a Lender has breached
its obligations hereunder and shall not be deemed to excuse any Lender from such
obligations.



Section 8.3 Expenses.



All payments, collections and proceeds received or effected by the Administrative Agent may be
applied, first, to pay or reimburse the Administrative Agent for all costs, expenses, damages and
liabilities at any time incurred by or imposed upon the Administrative Agent in connection with
this Agreement or any other Loan Document (including but not limited to all reasonable attorney’s
fees, foreclosure expenses and advances made to protect the security of collateral, if any, but
excluding any costs, expenses, damages or liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent). If the Administrative Agent does not receive payments,
collections or proceeds from the Borrower or its properties sufficient to cover any such costs,
expenses, damages or liabilities within 30 days after their incurrence or imposition, each Lender
shall, upon demand, remit to the Administrative




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Agent its Percentage of the difference between (i) such costs, expenses, damages and liabilities,
and (ii) such payments, collections and proceeds.




Section 8.4 Payments Received Directly by Lenders.



If any Lender or other holder of a Term Note shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on account of principal of or
interest on any Term Note other than through distributions made in accordance with Section 8.2,
such Lender or holder shall promptly give notice of such fact to the Administrative Agent and shall
purchase from the other Lenders or holders such participations in the Obligations held by them as
shall be necessary to cause the purchasing Lender or holder to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender or holder, the
purchase shall be rescinded and the purchasing Lender restored to the extent of such recovery (but
without interest thereon).




Section 8.5 Indemnification.



The Administrative Agent shall not be required to do any act hereunder or under any other document
or instrument delivered hereunder or in connection herewith, or to prosecute or defend any suit in
respect of this Agreement or the Term Notes or any documents or instrument delivered hereunder or
in connection herewith unless indemnified to its satisfaction by the holders of the Obligations
against loss, cost, liability and expense (other than any such loss, cost, liability or expense
attributable to the Administrative Agent’s own gross negligence or willful misconduct). If any
indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and not commence or cease to do the acts indemnified against until such
additional indemnity is furnished.




Section 8.6 Exculpation.





     (a) The Administrative Agent shall be entitled to rely upon advice of counsel
concerning legal matters, and upon this Agreement, any Loan Document and any schedule,
certificate, statement, report, notice or other writing which it in good faith believes to
be genuine or to have been presented by a proper person. Neither the Administrative Agent
nor any of its directors, officers, employees or agents shall (a) be responsible for any
recitals, representations or warranties contained in, or for the execution, validity,
genuineness, effectiveness or enforceability of this Agreement, any Loan Document, or any
other instrument or document delivered hereunder or in connection herewith, (b) be
responsible for the validity, genuineness, perfection, effectiveness, enforceability,
existence, value or enforcement of any collateral security, (c) be under any duty to inquire
into or pass upon any of the foregoing matters, or to make any inquiry concerning the
performance by the Borrower or any other obligor of its obligations (it being understood and
agreed that the Administrative Agent shall not be deemed to have knowledge of any Material
Adverse Change, Default or Event of Default unless the Administrative Agent has received
written notice thereof from the Company or any Lender, referring to this Agreement,
describing such Material Adverse Change, Default or Event of Default), or (d) in any event,
be liable as such for any action taken or omitted by it or them, except for its or their own
gross negligence or willful misconduct. The appointment of Wells Fargo as Administrative
Agent hereunder shall in no way impair or affect any of the rights and powers of, or impose
any duties or obligations upon, Wells Fargo in its individual capacity.




     (b) The term “agent” is used herein in reference to the Administrative Agent merely as
a matter of custom. It is intended to reflect only an administrative relationship between
the Administrative Agent and the other Lender Parties, in each case as independent
contracting parties. However, the obligations of the Administrative Agent shall be limited
to those expressly



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set forth herein. In no event shall the use of such term create or imply any fiduciary
relationship or any other obligation arising under the general law of agency, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the Administrative
Agent.



Section 8.7 Administrative Agent and Affiliates.



The Administrative Agent shall have the same rights and powers hereunder in its individual capacity
as any other Lender, and may exercise or refrain from exercising the same as though it were not the
Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from and
generally engage in any kind of business with the Borrower as fully as if the Administrative Agent
were not the Administrative Agent hereunder.




Section 8.8 Credit Investigation.



Each Lender acknowledges that it has made its own independent credit decision and investigation and
taken such care on its own behalf as would have been the case had its Commitment been granted and
the Term Loans made directly by such Lender to the Borrower without the intervention of the
Administrative Agent or any other Lender. Each Lender agrees and acknowledges that the
Administrative Agent makes no representations or warranties about the creditworthiness of the
Company or any other Borrower or other party to this Agreement or with respect to the legality,
validity, sufficiency or enforceability of this Agreement, any Loan Document, or any other
instrument or document delivered hereunder or in connection herewith.




Section 8.9 Resignation.



The Administrative Agent may resign as such at any time upon at least 30 days’ prior notice to the
Company and the Lenders. In the event of any resignation of the Administrative Agent, the Required
Lenders shall as promptly as practicable appoint a Lender as a successor Administrative Agent;
provided, however, that so long as no Default or Event of Default has occurred and is continuing at
such time, no such successor Administrative Agent may be appointed without the prior written
consent of the Company. If no such successor Administrative Agent shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days after the resigning
Administrative Agent’s giving of notice of resignation, then the resigning Administrative Agent
may, on behalf of the Lenders, appoint a Lender as a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States of America or of any State thereof.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon be entitled to receive
from the prior Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request and the resigning Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any resignation pursuant to
this Section, the provisions of this Section shall inure to the benefit of the retiring
Administrative Agent as to any actions taken or omitted to be taken by it while it was an
Administrative Agent hereunder.




Section 8.10 Assignments.





     (a) Any Lender may, at any time, assign a portion of the Obligations and Commitment
that it holds to an Eligible Lender (an “Applicant”) on any date (the “Adjustment Date”)
selected by such Lender, subject to the terms and provisions of this Section 8.10. The
aggregate principal amount of the Obligations and Commitment so assigned in any assignment
shall be not less than $5,000,000, and the assigning Lender shall retain at least $5,000,000
of such Obligations and Commitment for its own account; provided, however, that the
foregoing restriction shall not apply to a Lender assigning its entire Obligations and
Commitment to the



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Applicant. Any Lender proposing an assignment hereunder shall give notice of such
assignment to the Administrative Agent and the Company at least ten Business Days prior to
such assignment (unless the Administrative Agent and, so long as the Company’s consent is
required for such assignment, the Company consent to a shorter period of time). Such notice
shall specify the identity of such Applicant and the Percentage which it proposes that such
Applicant acquire (which Percentage shall be the same for the Commitment and the Obligations
held by the assigning Lender). Except as provided in paragraph (d) below, any assignment
hereunder may be made only with the prior written consent of the Administrative Agent and
the Company; provided, however, that (i) in no event shall such consent be unreasonably
withheld, and (ii) the consent of the Company shall not be required if a Default or Event of
Default has occurred and is continuing at the time of such assignment.




     (b) Subject to the prior written consent of the Administrative Agent and the Company
(if applicable), to confirm the status of an Applicant as a party to this Agreement and to
evidence the assignment of the applicable portion of the assigning Lender’s Commitment and
Obligations in accordance herewith:




	 	(i)	 	the Company, such Lender, such Applicant, and the
Administrative Agent shall, on or before the Adjustment Date, execute and
deliver to the Administrative Agent an Assignment Certificate (provided that,
if a Default or Event of Default has occurred and is continuing on the
applicable Adjustment Date, the assignment will be effective whether the
Company signs it or not), in substantially the form of Exhibit E (an
“Assignment Certificate”); and
	 
	 	(ii)	 	the Company will, at its own expense and in exchange for the
assigning Lender’s Term Note, execute and deliver to the assigning Lender a new
Term Note, payable to the order of the Applicant in an amount corresponding to
the applicable interest in the assigning Lender’s rights and obligations
acquired by such Applicant pursuant to such assignment, and, if the assigning
Lender has retained interests in such rights and obligations, a new Term Note,
payable to the order of that Lender in an amount corresponding to such retained
interests. Such new Term Notes shall be in an aggregate principal amount equal
to the principal amount of the Term Note to be replaced by such new Term Notes
(or, if less, the Commitment Amount of the assigning Lender prior to giving
effect to such assignment, unless such assignment is made after the Commitment
Termination Date, in which case the aggregate principal amount of the new Term
Notes shall equal the outstanding principal balance of the Term Note to be
replaced by such new Term Notes), shall be dated the effective date of such
assignment and shall otherwise be in the form of the Term Note to be replaced
thereby. Such new Term Notes shall be issued in substitution for, but not in
satisfaction or payment of, the Term Note being replaced thereby; and






Upon the execution and delivery of such Assignment Certificate and such Term Notes, (a) this
Agreement shall deemed to be amended to the extent, and only to the extent, necessary to
reflect the addition of such Additional Lender and the resulting adjustment of Percentages
arising therefrom, (b) the assigning Lender shall be relieved of all obligations hereunder
to the extent of the reduction of such Lender’s Percentage, and (c) the Additional Lender
shall become a party hereto and shall be entitled to all rights, benefits and privileges
accorded to a Lender herein and in each other document or instrument executed pursuant
hereto and subject to all obligations of a Lender hereunder, including the right to approve
or disapprove actions which, in accordance with the terms hereof, require the approval of
the Required Lenders or all Lenders, and the obligations to make Term Loans hereunder.



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     (c) In order to facilitate the addition of Additional Lenders hereto, the Company shall
(subject to the written agreement of any prospective Additional Lender to be subject to the
confidentiality provisions of Section 8.13) provide all reasonable assistance requested by
each Lender and the Administrative Agent relating thereto, which shall not require undue
effort or expense on the part of the Company, including, without limitation, the furnishing
of such written materials and financial information regarding the Company and its
Subsidiaries as any Lender or the Administrative Agent may reasonably request, and the
participation by officers of the Company and its Subsidiaries in a meeting or teleconference
call with any Applicant upon the reasonable request upon reasonable notice of any Lender or
the Administrative Agent.




     (d) Without limiting any other provision hereof:




	 	(i)	 	each Lender shall have the right at any time upon written
notice to the Company and the Administrative Agent (but without requiring the
consent of the Company or the Administrative Agent) to sell, assign, transfer,
or negotiate all or any part of its Commitment, Obligations, Term Notes, and
other rights and obligations under this Agreement and the Loan Documents to one
or more Affiliates of such Lender, provided that, unless consented to by the
Company and the Administrative Agent (which consent shall not be unreasonably
withheld), no such sale, assignment, transfer or negotiation of Commitment
shall relieve the transferring Lender from its obligations (to the extent such
Affiliate does not fulfill its obligations) hereunder; and
	 
	 	(ii)	 	each Lender shall have the right at any time upon written
notice to the Company and the Administrative Agent (but without requiring the
consent of the Company or the Administrative Agent) to sell, assign, transfer,
or negotiate all or any part of its Commitment, Obligations, Term Notes, and
other rights and obligations under this Agreement and the Loan Documents to one
or more Lenders, and any such sale, assignment, transfer or negotiation shall
relieve the transferring Lender from its obligations hereunder to the extent of
the obligations so transferred (except, in any event, to the extent that the
Company, any other Lender or the Administrative Agent has rights against such
transferring Lender as a result of any default by such transferring Lender
under this Agreement);






provided, however, that any partial sale, assignment, transfer or negotiation pursuant to
this Section shall be pro rata as to all of the Commitment, Obligations and Term Loans
transferred.




     (e) Simultaneously with any assignment under this Section, the Lender making such
assignment shall pay the Administrative Agent a transfer fee in the amount of $3,500.




     (f) Notwithstanding any other provision of this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this Agreement and that
Lender’s Obligations in favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System.




     (g) The Administrative Agent shall maintain a copy of each Assignment Certificate
delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, principal amount of the Term Loans by each Lender (the
“Register”). The entries in the Register shall be conclusive, and all of the parties to this
Agreement shall 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 any party to this
Agreement from time to time upon reasonable notice.



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     (h) Upon its receipt of a duly completed and executed Assignment Certificate and the
transfer fee required by Section 8.10(e), the Administrative Agent will accept such
Assignment Certificate and record the information therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this subsection.



Section 8.11 Participations



Each Lender may grant participations in a portion of its Obligations and Commitments to any
Eligible Lender, upon prior written notice to the Administrative Agent but without the consent of
the Administrative Agent or the Company, but only so long as the principal amount of the
participation so granted is no less than $5,000,000 (or, if the participant is a Participating
Affiliate, no less than $1,000,000). No holder of any such participation, other than an Affiliate
of such Lender, shall be entitled to require such Lender to take or omit to take any action
hereunder, except that such Lender may agree with such participant that such Lender will not,
without such participant’s consent, agree to any action described in paragraph (a) of Section 9.2.
No Lender shall, as between the Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any such granting of a participation. The Borrower hereby acknowledges and
agrees that any participant described in this Section will, for purposes of Sections 2.13, 2.14 and
2.15 only, be considered to be a Lender hereunder (provided that such participant shall not be
entitled to receive any more than the Lender selling such participation would have received had
such sale not taken place). For the avoidance of doubt, no participant will be entitled to the
benefits of Section 2.14 unless it complies with the provisions of Section 2.14(c) as if such
participant were a Lender hereunder.




Section 8.12 Limitation on Assignments and Participations.



Except as set forth in Sections 8.10 and 8.11, no Lender may assign any of its rights or
obligations under, or grant any participation in, any Loan Document or Commitment.




Section 8.13 Disclosure of Information.



The Lender Parties shall keep confidential (and cause their respective officers, directors,
employees, agents and representatives to keep confidential) all information, materials and
documents furnished by the Company and its Subsidiaries to the Administrative Agent or the Lenders
(the “Disclosed Information”). Notwithstanding the foregoing, the Administrative Agent and each
Lender may disclose Disclosed Information (i) to the Administrative Agent or any other Lender; (ii)
to any Affiliate of any Lender in connection with the transactions contemplated hereby, provided
that such Affiliate has been informed of the confidential nature of such information; (iii) to
legal counsel, accountants and other professional advisors to the Administrative Agent or such
Lender; (iv) to any regulatory body having jurisdiction over any Lender or the Administrative
Agent; (v) to the extent required by applicable laws and regulations or by any subpoena or similar
legal process, or requested by any governmental agency or authority; (vi) to the extent such
Disclosed Information (A) becomes publicly available other than as a result of a breach of this
Agreement, (B) becomes available to the Administrative Agent or such Lender on a non-confidential
basis from a source other than the Company or a Subsidiary, or (C) was available to the
Administrative Agent or such Lender on a non-confidential basis prior to its disclosure to the
Administrative Agent or such Lender by the Company or a Subsidiary; (vii) to the extent the Company
or such Subsidiary shall have consented to such disclosure in writing; (viii) to the extent
reasonably deemed necessary by the Administrative Agent or any Lender in the enforcement of the
remedies of the Lender Parties provided under the Loan Documents; or (ix) in connection with any
potential assignment or participation in the interest granted hereunder, provided that any such
potential assignee or participant shall have executed a confidentiality agreement imposing on such
potential assignee or participant substantially the same obligations as are imposed on the Lender
Parties under this Section 8.13.




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Section 8.14 Titles.



The Persons identified on the title page as “Sole Book Runner”, “Arranger”, “Syndication Agent” and
“Documentation Agent” shall have no right, power, obligation or liability under this Agreement or
any other Loan Document on account of such identification other than those applicable to such
Persons in their capacity (if any) as Lenders. Each Lender acknowledges that it has not relied, and
will not rely, on any Person so identified in deciding to enter into this Agreement or in taking or
omitting any action hereunder.




ARTICLE IX

Miscellaneous




Section 9.1 No Waiver; Cumulative Remedies.



No failure or delay on the part of the Lenders in exercising any right, power or remedy under the
Loan Documents shall operate as a waiver thereof; nor shall any Lender’s acceptance of payments
while any Default or Event of Default is outstanding operate as a waiver of such Default or Event
of Default, or any right, power or remedy under the Loan Documents; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy under the Loan Documents. The remedies provided in the
Loan Documents are cumulative and not exclusive of any remedies provided by law.




Section 9.2 Amendments, Etc.



No amendment or waiver of any provision of any Loan Document or consent to any departure by the
Borrower therefrom shall be effective unless the same shall be in writing and signed by the
Required Lenders (or by the Administrative Agent with the consent or at the request of the Required
Lenders), and any such waiver shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing:





     (a) No such amendment or waiver shall be effective to do any of the following unless
signed by each of the Lenders (or by the Administrative Agent with the consent or at the
request of each of the Lenders):




	 	(i)	 	Except as set forth in Section 2.8, increase the Commitment
Amount of any Lender.
	 
	 	(ii)	 	Extend the Commitment Termination Date.
	 
	 	(iii)	 	Permit the Borrower to assign its rights under this Agreement.
	 
	 	(iv)	 	Amend this Section, the definition of “Required Lenders” in
Section 1.1, or any provision herein providing for consent or other action by
all Lenders.
	 
	 	(v)	 	Forgive any indebtedness of the Borrower arising under this
Agreement or evidenced by the Term Notes, or reduce the rate of interest or any
fees charged under this Agreement or the Term Notes.
	 
	 	(vi)	 	Postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest or other material amounts
due to any Lender Party hereunder or under any other Loan Document.
	 
	 	(vii)	 	Amend Section 2.7(i) or 8.2(a) in a manner that would alter
the pro rata sharing required thereby.




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     (b) No amendment, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document unless in writing and
signed by the Administrative Agent.




     (c) No amendment, modification or (except as provided elsewhere herein) termination of
this Agreement or waiver of any rights of the Borrower or obligations of any Lender or the
Administrative Agent hereunder shall be effective unless the Borrower shall have consented
thereto in writing.


No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.




Section 9.3 Notices.





     (a) Generally. Except as otherwise expressly provided herein, all notices and other
communications hereunder shall be in writing and shall be (i) personally delivered, (ii)
transmitted by registered mail, postage prepaid, (iii) sent by Federal Express or similar
expedited delivery service, or (iv) transmitted by telecopy, in each case addressed or
transmitted by telecopy to the party to whom notice is being given at its address or
telecopier number (as the case may be) as set forth in Exhibit A or in any applicable
Assignment Certificate; or, as to each party, at such other address or telecopier number as
may hereafter be designated in a notice by that party to the other party complying with the
terms of this Section. All such notices or other communications shall be deemed to have been
given on (w) the date received if delivered personally, (x) five business days after the
date of posting, if delivered by mail, (y) the date of receipt, if delivered by Federal
Express or similar expedited delivery service, or (z) the date of transmission if delivered
by telecopy, except that notices or requests to the Lenders pursuant to any of the
provisions of Article II shall not be effective as to any Lender until received by that
Lender.




     (b) Use of Platform to Distribute Communications. The Administrative Agent may make any
material delivered by the Borrower to the Administrative Agent, as well as any amendments,
waivers, consents, and other written information, documents, instruments and other materials
relating to the Company or any of its Subsidiaries, or any other materials or matters
relating to any Loan Documents, or any of the transactions contemplated hereby or thereby
(collectively, the “Communications”) available to the Lender Parties by posting such notices
on an electronic delivery system such as DebtX, IntraLinks or a substantially similar
electronic system (the “Platform”). The Borrower acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the Platform is
provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of
its Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing
of the Communications posted on the Platform. The Administrative Agent and its Affiliates
expressly disclaim with respect to the Platform any liability for errors in transmission,
incorrect or incomplete downloading, delays in posting or delivery, or problems accessing
the Communications posted on the Platform and any liability for any losses, costs, expenses
or liabilities that may be suffered or incurred in connection with the Platform. No warranty
of any kind, express, implied or statutory, including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Administrative Agent or any of its Affiliates
in connection with the Platform.



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Section 9.4 Costs and Expenses.



The Company agrees to pay on demand (i) all costs and expenses incurred by the Administrative Agent
in connection with the negotiation, preparation, execution, administration or amendment of the Loan
Documents and the other instruments and documents to be delivered hereunder and thereunder, and
(ii) all costs and expenses incurred by the Administrative Agent or any Lender in connection with
the workout or enforcement of the Loan Documents and the other instruments and documents to be
delivered hereunder and thereunder; including, in each case, reasonable fees and out-of-pocket
expenses of counsel with respect thereto, whether paid to outside counsel or allocated to the
Administrative Agent or such Lender by in-house counsel. The Company also agrees to pay and
reimburse the Administrative Agent for all of its out-of-pocket and allocated costs incurred in
connection with each audit or examination conducted by the Administrative Agent, its employees or
agents, which audits and examinations shall be for the sole benefit of the Lender Parties.




Section 9.5 Indemnification by Borrower.



The Borrower hereby agrees to indemnify each Lender Party and each officer, director, employee and
agent thereof (herein individually each called an “Indemnitee” and collectively called the
“Indemnitees”) from and against any and all losses, claims, damages, reasonable expenses
(including, without limitation, reasonable attorneys’ fees) and liabilities (all of the foregoing
being herein called the “Indemnified Liabilities”) incurred by an Indemnitee in connection with or
arising out of the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective obligations
hereunder or the use of the proceeds of any Term Loan (including but not limited to any such loss,
claim, damage, expense or liability arising out of any claim that any Environmental Law has been
breached with respect to any activity or property of the Company or its Subsidiaries), except with
respect to taxes, which shall be governed by Section 2.14, and except for any portion of such
losses, claims, damages, expenses or liabilities incurred solely as a result of the gross
negligence or willful misconduct of the applicable Indemnitee. If and to the extent that the
foregoing indemnity may be unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. All obligations provided for in this Section shall survive any
termination of this Agreement.




Section 9.6 Execution in Counterparts.



This Agreement and the other Loan Documents may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all of which
counterparts of this Agreement or such other Loan Document, as the case may be, taken together,
shall constitute but one and the same instrument.




Section 9.7 Binding Effect, Assignment.



The Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lender
Parties and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights thereunder or any interest therein without the prior written consent of
each of the Lenders.




Section 9.8 Governing Law.



The Loan Documents shall be governed by, and construed in accordance with, the laws of the State of
Minnesota.




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Section 9.9 Severability of Provisions.



Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof.




Section 9.10 Consent to Jurisdiction.



Each party irrevocably (i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or any other Loan Document may be brought in a court of record in
Hennepin County in the State of Minnesota or in the courts of the United States located in such
State, (ii) consents to the jurisdiction of each such court in any suit, action or proceeding,
(iii) waives any objection which it may have to the laying of venue of any such suit, action or
proceeding in any such courts and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum, and (iv) agrees that a final judgment in any such suit, 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.




Section 9.11 Waiver of Jury Trial.



THE BORROWER AND THE LENDER PARTIES 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 AND THE TERM NOTES OR THE
RELATIONSHIPS ESTABLISHED HEREUNDER.




Section 9.12 Prior Agreements.



This Agreement and the other Loan Documents and related documents described herein restate and
supersede in their entirety any and all prior agreements and understandings, oral or written,
between the Lenders and the Borrower relating to the subject matter hereof.




Section 9.13 Recalculation of Covenants Following Accounting Practices Change.



The Company shall notify the Administrative Agent of any Accounting Practices Change promptly upon
becoming aware of the same. Promptly following such notice, the Company and the Lenders shall
negotiate in good faith in order to effect any adjustments to the Financial Covenants necessary to
reflect the effects of such Accounting Practices Change.




Section 9.14 Headings.



Article and Section headings in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.




Section 9.15 Nonliability of Lenders.



The relationship between the Borrower on the one hand and the Lenders and the Administrative Agent
on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent nor
any Lender shall have any fiduciary responsibilities to the Borrower. Neither the Administrative
Agent nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or operations. The Borrower
agrees that neither the Administrative Agent nor any Lender shall have liability to the Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of competent jurisdiction
that such losses resulted from the gross




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negligence or willful misconduct of the party from which
recovery is sought. Neither the Administrative Agent nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to sue for, any special,
indirect or consequential damages suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions contemplated thereby.




Section 9.16 Customer Identification — USA Patriot Act Notice.



The Administrative Agent hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Act”), and the
Administrative Agent’s policies and practices, each Lender is required to obtain, verify and record
certain information and documentation that identifies the Borrower, which information includes the
name and address of the Borrower and such other information that will allow each Lender to identify
the Borrower in accordance with the Act.




[Signature Pages Follow]





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




	 	 	 	 	 
	 	SENSIENT TECHNOLOGIES CORPORATION

 	 
	 	By  	/s/ John F. Collopy	 
	 	 	Name:  	John F. Collopy 	 
	 	 	Title:  	Treasurer 	 
	 



Signature Page to Sensient Technologies Corporation Credit Agreement




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender

 	 
	 	By  	/s/ Mark Halldorson	 
	 	 	Name:  	Mark H. Halldorson	 
	 	 	Title:  	Vice President	 
	 



Signature Page to Sensient Technologies Corporation Credit Agreement




 









 








	 	 	 	 	 
	 	NATIONAL CITY BANK

 	 
	 	By  	/s/ Stephanie Kline	 
	 	 	Name:  	Stephanie Kline	 
	 	 	Title:  	Senior Vice President	 
	 



Signature Page to Sensient Technologies Corporation Credit Agreement




 









 








	 	 	 	 	 
	 	TD BANK, N.A.

 	 
	 	By  	/s/
Todd S. Sturza	 
	 	 	Name:  	Todd S. Sturza	 
	 	 	Title:  	Regional
Vice President	 
	 



Signature Page to Sensient Technologies Corporation Credit Agreement




 









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
     Chicago Branch

 	 
	 	By  	/s/
Victor Pierzchalski	 
	 	 	Name:  	Victor Pierzchalski	 
	 	 	Title:  	Authorized
Signatory	 
	 



Signature Page to Sensient Technologies Corporation Credit Agreement





 









 








EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A

	 	Commitment Amounts and Addresses
	Exhibit B

	 	Term Note
	Exhibit C

	 	Compliance Certificate
	Exhibit D

	 	Opinion of Borrower’s Counsel
	Exhibit E

	 	Assignment Certificate
	Exhibit F

	 	Borrowing Certificate
	Exhibit G

	 	Designation Certificate
	 
	 	 
	Schedule 4.2

	 	Consents
	Schedule 4.4

	 	Subsidiaries
	Schedule 4.7

	 	Litigation
	Schedule 4.8

	 	Environmental Matters
	Schedule 6.1

	 	Liens
	Schedule 6.12

	 	Existing Investments
	Schedule 6.13

	 	Guaranties, Etc.