EX-10.1






Exhibit 10.1




EXECUTION VERSION




U.S. $150,000,000




CREDIT AGREEMENT




Dated as of February 2, 2009




among




THE LUBRIZOL CORPORATION

as Borrower,




and




THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders




and




KEYBANK NATIONAL ASSOCIATION

as Agent




 






KEYBANC CAPITAL MARKETS

as Joint Lead Arranger and Sole Bookrunner,




PNC CAPITAL MARKETS LLC

as Joint Lead Arranger




and




PNC BANK, NATIONAL ASSOCIATION

as Syndication Agent




 









 






TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	SECTION 1.01. Certain Defined Terms
	 	 	1	 
	 
	SECTION 1.02. Computation of Time Periods
	 	 	8	 
	 
	SECTION 1.03. Accounting Terms
	 	 	9	 
	 
	ARTICLE II
	 	 	 	 
	 
	SECTION 2.01. The Loans
	 	 	9	 
	 
	SECTION 2.02. Making the Loans
	 	 	9	 
	 
	SECTION 2.03. [RESERVED]
	 	 	9	 
	 
	SECTION 2.04. Fees
	 	 	9	 
	 
	SECTION 2.05. [RESERVED]
	 	 	9	 
	 
	SECTION 2.06. Repayment of Loans
	 	 	9	 
	 
	SECTION 2.07. Interest on Loans
	 	 	10	 
	 
	SECTION 2.08. Interest Rate Determination
	 	 	10	 
	 
	SECTION 2.09. Optional Conversion of Loans
	 	 	11	 
	 
	SECTION 2.10. Prepayments of Loans
	 	 	11	 
	 
	SECTION 2.11. Increased Costs
	 	 	11	 
	 
	SECTION 2.12. Illegality
	 	 	12	 
	 
	SECTION 2.13. Payments and Computations
	 	 	12	 
	 
	SECTION 2.14. Taxes
	 	 	13	 
	 
	SECTION 2.15. Sharing of Payments, Etc.
	 	 	14	 
	 
	SECTION 2.16. Evidence of Debt
	 	 	15	 
	 
	SECTION 2.17. Use of Proceeds
	 	 	15	 
	 
	ARTICLE III
	 	 	 	 
	 
	SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01
	 	 	15	 






 









 






	 	 	 	 	 
	SECTION 3.02. [RESERVED]
	 	 	17	 
	 
	SECTION 3.03. Conditions Precedent to Each Borrowing
	 	 	17	 
	 
	SECTION 3.04. Determinations Under Section 3.01
	 	 	17	 
	 
	ARTICLE IV
	 	 	 	 
	 
	SECTION 4.01. Representations and Warranties of the Borrower
	 	 	17	 
	 
	ARTICLE V
	 	 	 	 
	 
	SECTION 5.01. Affirmative Covenants
	 	 	19	 
	 
	SECTION 5.02. Negative Covenants
	 	 	20	 
	 
	SECTION 5.03. Financial Covenants
	 	 	23	 
	 
	ARTICLE VI
	 	 	 	 
	 
	SECTION 6.01. Events of Default
	 	 	23	 
	 
	ARTICLE VII
	 	 	 	 
	 
	[RESERVED]
	 	 	25	 
	 
	ARTICLE VIII
	 	 	 	 
	 
	SECTION 8.01. Authorization and Action
	 	 	25	 
	 
	SECTION 8.02. Agent’s Reliance, Etc.
	 	 	25	 
	 
	SECTION 8.03. KeyBank and Affiliates
	 	 	25	 
	 
	SECTION 8.04. Lender Credit Decision
	 	 	26	 
	 
	SECTION 8.05. Indemnification
	 	 	26	 
	 
	SECTION 8.06. Successor Agent
	 	 	26	 
	 
	SECTION 8.07. Other Agents.
	 	 	26	 
	 
	ARTICLE IX
	 	 	 	 
	 
	SECTION 9.01. Amendments, Etc.
	 	 	27	 
	 
	SECTION 9.02. Notices, Etc.
	 	 	27	 






ii









 






	 	 	 	 	 
	SECTION 9.03. No Waiver; Remedies
	 	 	28	 
	 
	SECTION 9.04. Costs and Expenses
	 	 	28	 
	 
	SECTION 9.05. Right of Set-off
	 	 	29	 
	 
	SECTION 9.06. Binding Effect
	 	 	29	 
	 
	SECTION 9.07. Assignments and Participations
	 	 	29	 
	 
	SECTION 9.08. Confidentiality
	 	 	31	 
	 
	SECTION 9.09. Governing Law
	 	 	31	 
	 
	SECTION 9.10. Execution in Counterparts
	 	 	31	 
	 
	SECTION 9.11. Jurisdiction, Etc.
	 	 	31	 
	 
	SECTION 9.12. [RESERVED]
	 	 	31	 
	 
	SECTION 9.13. [RESERVED]
	 	 	31	 
	 
	SECTION 9.14. Patriot Act
	 	 	31	 
	 
	SECTION 9.15. Waiver of Jury Trial
	 	 	32	 






iii









 






Schedules




Schedule I - List of Applicable Lending Offices




Schedule 3.01(b) - Disclosed Litigation




Schedule 5.02(a) - Existing Liens




	 	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Term Note
	 
	 	 	 	 
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Exhibit D

	 	-
	 	Form of Opinion of Counsel for the Borrower






iv









 





THREE-YEAR CREDIT AGREEMENT




Dated as of February 2, 2009




          THE LUBRIZOL CORPORATION, an Ohio corporation (the “Borrower”), the banks, financial
institutions and other institutional lenders (the “Initial Lenders”) listed on the
signature pages hereof, KEYBANC CAPITAL MARKETS, as joint lead arranger and sole bookrunner, PNC
CAPITAL MARKETS LLC, as joint lead arranger, PNC BANK, NATIONAL ASSOCIATION, as syndication agent
and, KEYBANK NATIONAL ASSOCIATION (“KeyBank”), as administrative agent (the
“Agent”) for the Lenders (as defined herein), agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Credit Agreement (the
“Agreement”), the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):





     “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.




     “Agent’s Account” means the account of the Agent maintained by the Agent at its
office at 127 Public Square, Cleveland, Ohio 44114, Account No. 1140228209035, Account Name:
KNB Services, Attention: Kathy Koenig.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Loan and such Lender’s Eurodollar Lending
Office in the case of a Eurodollar Rate Loan.




     “Applicable Margin” means with respect to the Facility as of any date, a
percentage per annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:



	 	 	 	 	 	 	 	 	 
	Public Debt Rating	 	Applicable Margin for	 	Applicable Margin for
	S&P/Moody’s	 	Eurodollar Rate Loans	 	Base Rate Loans
	Level 1
	 	 	 	 	 	 	 	 
	BBB+ or Baa1 or above
	 	 	2.50	%	 	 	2.50	%
	Level 21
	 	 	 	 	 	 	 	 
	BBB or Baa2
	 	 	2.75	%	 	 	2.75	%
	Level 3
	 	 	 	 	 	 	 	 
	BBB– or Baa3
	 	 	3.00	%	 	 	3.00	%
	Level 4
	 	 	 	 	 	 	 	 
	BB+ or Ba1
	 	 	3.25	%	 	 	3.25	%
	Level 5
	 	 	 	 	 	 	 	 
	Lower than Level 4
	 	 	3.75	%	 	 	3.75	%








 




			
	1	 	Pricing level as of the Effective Date




 









 











     “Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.




     “Base Rate” means, for any day, a fluctuating interest rate per annum as shall
be in effect from time to time, which rate per annum shall at all times be equal to the
greatest of (i) the interest rate established from time to time by the Agent as the Agent’s
“prime rate”, whether or not publicly announced, which interest rate may not be the lowest
rate charged by the Agent for commercial or other extensions of credit, (ii) the Federal
Funds Rate, in effect from time to time, determined one Business Day in arrears, plus 1/2 of
1% per annum and (iii) the applicable Eurodollar Rate for a Eurodollar Rate Loan made that
day with a one month Interest Period plus 1% per annum.




     “Base Rate Loan” means a Loan that bears interest as provided in
Section 2.07(a)(i).




     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type
made by the Lenders.




     “Borrowing Date” means the date indicated on a Notice of Borrowing on which
each Lender is to advance a Loan to the Borrower in an amount equal to such Lender’s
Commitment, but in no event shall such date be more than three Business Days after the
Effective Date.




     “Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to
any Eurodollar Rate Loans, on which dealings are carried on in the London interbank market.




     “Commitment” means as to any Lender the U.S. dollar amount set forth opposite
such Lender’s name on Schedule I hereto as such Lender’s “Commitment” as of the Effective
Date.




     “Confidential Information” means information that the Borrower furnishes to the
Agent or any Lender in a writing designated as confidential, but does not include any such
information that is generally available to the public or that is available to the Agent or
such Lender on a non-confidential basis from a source other than the Borrower that is, to
the knowledge of the Agent or such Lender, not acting in breach of any confidentiality
agreement.




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Consolidated EBITDA” means, for any period, (a) Consolidated net income,
plus (b) to the extent deducted in determining such Consolidated net income, the sum
of, on a Consolidated basis and without duplication: (i) interest expense, (ii) income tax
expense, (iii) depreciation expense, (iv) amortization expense, (v) depletion expense, (vi)
extraordinary, unusual or non-recurring non-cash losses, including goodwill impairment or
amortization expense and non-cash losses from the sale, exchange, transfer or other
disposition of property of the Borrower or its Subsidiaries and the related tax effects in
accordance with GAAP minus (c) to the extent included in determining such
Consolidated net income, the sum of, on a Consolidated basis and without duplication: (i)
the income of any Person (other than a wholly owned Subsidiary of the Borrower) in which any
Person other than the Borrower or any of its Subsidiaries has a joint interest or a
partnership interest or other ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its Subsidiaries by
such Person during such period, (ii) gains from the sale, exchange, transfer or other
disposition of property or assets of the Borrower and its Subsidiaries (other than inventory
sold in the ordinary course of business), and related tax effects in accordance with GAAP,
(iii) any other extraordinary, unusual or non-recurring gains or other



2









 







income not from the continuing operations of the Borrower and its Subsidiaries, and
related tax effects in accordance with GAAP and (iv) the income of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar distributions
by that Subsidiary of that income is not at the time permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary. For the purpose of calculating
Consolidated EBITDA for any period, if during such period the Borrower or any Subsidiary
shall have made an acquisition of any Person, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such acquisition occurred on the
first day of such period.




     “Consolidated Tangible Net Assets” means, as at any date, the aggregate amount
of Consolidated assets (less depreciation, amortization and other applicable reserves and
other items deductible therefrom under GAAP) after deducting therefrom (a) all current
liabilities (excluding any thereof which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months after the time as of which the
amount thereof is being computed), (b) all goodwill, tradenames, trademarks, patents and
other intangibles, in each case net of applicable amortization and (c) appropriate
adjustments on account of minority interests of other Persons holding stock of the
Borrower’s Subsidiaries, all as would be shown on a Consolidated balance sheet of the
Borrower and its Subsidiaries and determined in accordance with GAAP.




     “Convert”, “Conversion” and “Converted” each refers to a
conversion of Loans of one Type into Loans of the other Type pursuant to Section 2.08 or
2.09.




     “Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables not overdue by more than 120 days
incurred in the ordinary course of such Person’s business; provided that trade
payables which are overdue by more than 120 days shall not be included so long as payment of
such is being contested in good faith and by proper proceedings), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of such Person as
lessee under leases that have been or should be, in accordance with GAAP, recorded as
capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all Debt of others
referred to in clauses (a) through (f) above or clause (i) below and other payment
obligations guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person (“Guaranteed Debt”) through an
agreement (1) to pay or purchase such Guaranteed Debt or to advance or supply funds for the
payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed
Debt against loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (h) all Debt referred to in clauses (a) through (g) above secured by (or
for which the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such Debt; provided, that Debt shall not include transactions in the
ordinary course of business by the Borrower or its directly or indirectly held Subsidiaries
with customers and vendors in the form of (x) commitments to lend or loans to customers that
are repayable either over an agreed period of time or at the time of purchases by the
customers of products of the Borrower or its Subsidiaries and (y) advances made to vendors
that are treated either repayable over a period of time or as advance payments for products
to be purchased by the Borrower or its Subsidiaries from the vendor.



3









 






     “Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.




     “Disclosed Litigation” has the meaning specified in Section 3.01(b).




     “Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or
in the Assignment and Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the Borrower and the Agent.




     “Domestic Subsidiary” means each Subsidiary of the Borrower organized in the
United States or a political subdivision thereof.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person (unless such Person is taking delivery of an assignment in connection
with physical settlement of a credit derivative transaction) approved by the Agent and,
unless an Event of Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 9.07, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages, and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.




     “ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within
the following 30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to



4









 







Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the conditions for the imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (f) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to administer, a
Plan.




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




     “Eurodollar Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such other office of such Lender
as such Lender may from time to time specify to the Borrower and the Agent.




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




     “Eurodollar Rate Loan” means a Loan that bears interest as provided in
Section 2.07(a)(ii).




     “Events of Default” has the meaning specified in Section 6.01.




     “Existing Credit Agreement” means the Credit Agreement, dated as of August 24,
2004, among the Borrower, the lenders named therein, KeyBank National Association and ABN
AMRO Bank N.V., as co-syndication agents, Wachovia Bank, National Association, as
documentation agent, CitiGroup Global Markets Inc. and KeyBanc Capital Markets, as co-lead
arrangers and co-bookrunners, and CitiCorp North America, Inc., as agent, as amended and as
the same may be further amended, restated, amended and restated or otherwise modified.




     “Facility” means, at any time, the aggregate amount of the Lenders’ Commitments
at such time.




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day



5









 







(or,
if such day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected by it.




     “Foreign Assets” means those assets of the Borrower or any of its Subsidiaries
that (a) consist of capital stock or other equity interests of Subsidiaries that are not
Domestic Subsidiaries, (b) are assets owned by Subsidiaries that are not Domestic
Subsidiaries or (c) are located outside of the United States.




     “GAAP” has the meaning specified in Section 1.03.




     “Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant, under any
Environmental Law.




     “Information Memorandum” means the confidential information memorandum dated
January 7, 2009 used by the Agent in connection with the syndication of the Commitments.




     “Interest Period” means, for each Eurodollar Rate Loan comprising part of the
same Borrowing, the period commencing on the date of such Eurodollar Rate Loan or the date
of the Conversion of any Base Rate Loan into such Eurodollar Rate Loan and ending on the
last day of the period selected by the applicable Borrower pursuant to the provisions below
and, thereafter, with respect to Eurodollar Rate Loans, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:




     (a) the Borrower may not select any Interest Period that ends after the
Maturity Date;




     (b) Interest Periods commencing on the same date for Eurodollar Rate Loans
comprising part of the same Borrowing shall be of the same duration;




     (c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “Investment” in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock, warrants, rights, options, obligations
or other securities or all or substantially all of the assets of such Person, any capital
contribution to such Person or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor



6









 







incurs Debt of the types referred to in clauses (g) and (h) of the definition of
“Debt” in respect of such Person.




     “Lenders” means the Initial Lenders and each Person that shall become a party
hereto pursuant to Section 9.07.




     “Lien” means any lien, security interest or other charge or encumbrance of any
kind, including, without limitation, the lien or retained security title of a conditional
vendor and any security interest or mortgage granted in real property.




     “Loan” has the meaning specified in Section 2.01.




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




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




     “Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise) or operations of the Borrower and its Subsidiaries taken
as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or
any Term Note or (c) the ability of the Borrower to perform its obligations under this
Agreement or any Term Note.




     “Maturity Date” means the earlier of (a) February 2, 2012, and (b) the
acceleration of the Loans pursuant to Section 6.01.




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




     “Net Cash Proceeds” means, with respect to any sale, lease, transfer or other
disposition of any asset or the incurrence or issuance of any Debt or the sale or issuance
of any equity interests (including, without limitation, any capital contribution) by any
Person, the aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration) by or on behalf
of such Person in connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting fees and
discounts, legal and accounting fees, filing fees, finder’s fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with or as a result of such
transaction and (c) the amount of any Debt secured by a Lien on such asset that, by the
terms of the agreement or instrument governing such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid to a Person that is not an
Affiliate of such Person and are properly attributable to such transaction or to the asset
that is the subject thereof.




     “Notice of Borrowing” has the meaning specified in Section 2.02.




     “Other Taxes” has the meaning specified in Section 2.14(b).




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




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




     “Plan” means a Single Employer Plan.




     “Public Debt Rating” means, as of any date, the rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any class of non-credit
enhanced long-term senior



7









 







unsecured debt issued by the Borrower or, if either of S&P or Moody’s has issued more
than one such rating, the lowest such rating issued by such rating agency. For purposes of
the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin shall be determined by reference to the available rating; (b) if
neither S&P nor Moody’s shall have in effect a Public Debt Rating, the Applicable Margin
will be set in accordance with Level 5 under the definition of “Applicable Margin”;
(c) if any rating established by S&P or Moody’s shall be changed, such change shall be
effective as of the date on which such change is first announced publicly by the rating
agency making such change; (d) if S&P or Moody’s shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P or Moody’s, as the
case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may
be; and (e) if the ratings established by S&P and Moody’s shall fall within different
levels, the Applicable Margin shall be based upon the higher rating, unless the lower of
such ratings is more than one level below the higher of such ratings, in which case the
Applicable Margin shall be based upon the level that is one level above the lower of such
ratings.




     “Register” has the meaning specified in Section 9.07(d).




     “Required Lenders” means at any time Lenders owed greater than 50% of the
aggregate principal amount of the Loans outstanding at such time.




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




     “Single Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any
ERISA Affiliate and no Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be terminated.




     “Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.




     “Taxes” has the meaning specified in Section 2.14(a).




     “Term Note” means a promissory note of a Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the indebtedness of the Borrower to such Lender resulting from
the Loans made by such Lender.




     “Type” refers to the distinction between Base Rate Loans and Eurodollar Rate
Loans.




     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.



          SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.




8









 








          SECTION 1.03. Accounting Terms. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with generally accepted
accounting principles in the United States, as in effect from time to time (“GAAP”);
provided that, if the Borrower notifies the Agent that the Borrower requests an amendment
to any provision hereof as a result of a change in GAAP or in the application thereof on the
operation of such provision (or if the Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.




ARTICLE II




AMOUNTS AND TERMS OF THE LOANS




          SECTION 2.01. The Loans. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a “Loan”) to the Borrower on the Borrowing
Date in an amount not to exceed such Lender’s Commitment. The Borrowing shall consist of Loans
made simultaneously by the Lenders ratably according to their Commitments. Amounts borrowed under
this Section 2.01 and repaid or prepaid may not be reborrowed. Upon funding of the Loans on the
Borrowing Date, the Commitments of each Lender shall be deemed terminated.




          SECTION 2.02. Making the Loans. (a) Each Borrowing shall be made on notice by the
Borrower to the Agent, which Agent shall give to each Lender prompt notice thereof by facsimile or
e-mail. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone,
confirmed immediately in writing, e-mail or facsimile in substantially the form of Exhibit B
hereto, specifying therein the requested (i) Borrowing Date, (ii) Type of Loans comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting
of Eurodollar Rate Loans, initial Interest Period for each such Loan. Each Lender shall, on the
Borrowing Date, make available for the account of its Applicable Lending Office to the Agent at the
Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. After the
Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in
Section 3.03, the Agent shall make such funds available to the Borrower such Loans by depositing
such funds to such account as the Borrower shall specify.




          (b) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Loans, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure by the Borrower to fulfill on or before the Borrowing Date the
applicable conditions set forth in Section 3.03, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan,
as a result of such failure, is not made on the Borrowing Date.




          SECTION 2.03. [RESERVED.]




          SECTION 2.04. Fees. The Borrower shall pay to the Agent for its own account the fees
set forth in any fee letter between the Borrower and the Agent or as may from time to time be
otherwise agreed in writing between the Borrower and the Agent.




          SECTION 2.05. [RESERVED.]




          SECTION 2.06. Repayment of Loans. The Borrower shall repay Loans to the Agent for
the ratable account of the Lenders a principal amount of the Loans equal to the amount set forth
opposite such date:




9









 








	 	 	 	 	 
	Repayment Date	 	Amount
	April 30, 2010
	 	$ 	9,375,000	 
	July 31, 2010
	 	$ 	9,375,000	 
	October 31, 2010
	 	$ 	9,375,000	 
	January 31, 2011
	 	$ 	9,375,000	 
	April 30, 2011
	 	$ 	15,000,000	 
	July 31, 2011
	 	$ 	15,000,000	 
	October 31, 2011
	 	$ 	15,000,000	 
	January 31, 2012
	 	$ 	15,000,000	 
	Maturity Date
	 	Outstanding principal balance






          SECTION 2.07. Interest on Loans. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Loan owing to each Lender from the date
of such Loan until such principal amount shall be paid in full, at the following rates per annum:





     (i) Base Rate Loans. During such periods as such Loan is a Base Rate Loan, a
rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to
time plus (y) the Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each April, July, October and January, during such periods and
on the date such Base Rate Loan shall be Converted or paid in full.




     (ii) Eurodollar Rate Loans. During such periods as such Loan is a Eurodollar
Rate Loan, a rate per annum equal at all times during each Interest Period for such Loan to
the sum of (x) the Eurodollar Rate for such Interest Period for such Loan plus
(y) the Applicable Margin in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Loan shall be Converted or paid in
full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default that has not been waived, the Agent may, and upon the request of the Required Lenders
shall, require the Borrower to pay interest (“Default Interest”) on (i) the unpaid
principal amount of each Loan owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Loan pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest or other amount payable
hereunder that is not paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at
a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on
Base Rate Loans pursuant to clause (a)(i) above; provided, however, that following
acceleration of the Loans pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Agent.




          SECTION 2.08. Interest Rate Determination. (a) The Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a)(i) or (ii).




          (b) If, with respect to any Eurodollar Rate Loans, the Required Lenders notify the Agent that
the Eurodollar Rate for any Interest Period for such Loans will not adequately reflect the cost to
such Required Lenders, as determined in the exercise of each such Lender’s commercially reasonable
discretion, of making, funding or maintaining their respective Eurodollar Rate Loans for such
Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon
(A) the Borrower will, on the last day of the then existing Interest Period therefor, either (x)
prepay such Loans or (y) Convert such Loans into Base Rate Loans and (B) the obligation of the
Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer
exist.




          (c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Loans in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the



10









 







Agent will forthwith so notify the Borrower and the Lenders and such
Loans will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Loans.




          (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Loans
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000, such Loans shall automatically Convert into Base Rate Loans.




          (e) Upon the occurrence and during the continuance of any Event of Default that has not been
waived, (i) each Eurodollar Rate Loan will automatically, on the last day of the then existing
Interest Period therefor, be Converted into Base Rate Loans and (ii) the obligation of the Lenders
to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended.




          (f) If determination of the Eurodollar Rate is unavailable,





     (i) the Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Loans,




     (ii) with respect to Eurodollar Rate Loans, each such Loan will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate Loan (or if
such Loan is then a Base Rate Loan, will continue as a Base Rate Loan), and




     (iii) the obligation of the Lenders to make Eurodollar Rate Loans or to Convert Loans
into Eurodollar Rate Loans shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.



               SECTION 2.09. Optional Conversion of Loans. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert any or all Loans of one Type comprising the same Borrowing made to it into Loans of
the other Type; provided, however, that any Conversion of Eurodollar Rate Loans
into Base Rate Loans shall be made only on the last day of an Interest Period for such Eurodollar
Rate Loans, any Conversion of Base Rate Loans into Eurodollar Rate Loans shall be in an amount not
less than $10,000,000 and each Conversion of Loans comprising part of the same Borrowing under the
Facility shall be made ratably among the Lenders in accordance with their Commitments under the
Facility. Each such notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Loans to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Loans, the duration of the initial Interest Period for each such Loan. Each
notice of Conversion shall be irrevocable and binding on the Borrower.




               SECTION 2.10. Prepayments of Loans. The Borrower may, upon notice at least two
Business Days prior to the date of such prepayment, in the case of Eurodollar Rate Loans, and not
later than 11:00 A.M. (New York City time) on the date of such prepayment, in the case of Base Rate
Loans, to the Agent stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given, the Borrower shall prepay the outstanding principal amount of the Loans
comprising part of the same Borrowing in whole or ratably in part, together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Loan, the applicable Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 9.04(c). Prepayments of Loans shall be applied
in forward order of maturity.




               SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority including, without
limitation, any agency of the European Union or similar monetary or multinational authority
(whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans (excluding for purposes of this Section 2.11 any such
increased costs resulting from taxes (as to which Section 2.14 shall govern)),



11









 






then the Borrower
shall from time to time, without premium or penalty, upon written demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost; provided
however, that at such time such Lender shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements having provisions similar to this
Section 2.11. A certificate as to the amount of such increased cost, submitted to the Borrower and
the Agent by such Lender, shall be conclusive and binding for all purposes, absent error in the
calculation of such amounts.




          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender (taking into consideration such Lender’s (or such
controlling corporation’s) policies with respect to capital adequacy) and that the amount of such
capital is increased by or based upon the existence of such Lender’s commitment to lend hereunder
and other commitments of this type, then, upon written demand by such Lender (with a copy of such
demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender, from time
to time as specified by such Lender, without premium or penalty, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances, to the extent that
such Lender reasonably determines such increase in capital to be allocable to the existence of such
Lender’s commitment to lend hereunder; provided, however, that at such time such
Lender shall be generally assessing such amounts on a non-discriminatory basis against borrowers
under agreements having provisions similar to this Section 2.11. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and binding for all
purposes, absent error in the calculation of such amounts.




          (c) Each Lender will notify the Borrower of any change that will entitle such Lender to
compensation under this Section 2.11 as promptly as practicable, but in any event within 90 days
after such Lender obtains knowledge thereof; provided, however, that, if any Lender
fails to give such notice within 90 days after it obtains knowledge of such change, such Lender
shall, with respect to compensation payable in respect of any costs resulting from such change,
only be entitled to payment for costs incurred from and after the date that such Lender does give
such notice plus, if such change shall have retroactive effect, costs resulting from such change
during the period of retroactive effect thereof. Any Lender claiming any additional amounts
payable pursuant to this Section 2.11 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the jurisdiction of its Eurodollar
Lending Office if the making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender.




          SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain
Eurodollar Rate Loans hereunder, (a) each Eurodollar Rate Loan of such Lender will automatically,
upon such demand, be Converted into a Base Rate Loan and (b) the obligation of the Lenders to make
Eurodollar Rate Loans or to Convert Loans into Eurodollar Rate Loans shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.




          SECTION 2.13. Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in
same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest ratably (other than amounts payable pursuant to Section 2.04,
2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to Section 9.07(c), from
and after the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the Term Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance



12









 






shall
make all appropriate adjustments in such payments for periods prior to such effective date directly
between themselves.




          (b) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest is payable. Each determination by the Agent
of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.




          (c) Whenever any payment hereunder or under the Term Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the Business Day next succeeding, and such
extension of time shall in such case be included in the computation of payment of interest;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Loans to be made in the next following calendar month, such payment
shall be made on the Business Day next preceding.




          (d) Unless the Agent shall have received notice from the Borrower, prior to the date on which
any payment is due to the Lenders hereunder, that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.




          (e) If the Agent receives funds for application to the obligations hereunder under
circumstances for which neither this Agreement nor the Borrower specifies the Loans to which, or
the manner in which, such funds are to be applied, the Agent may, but shall not be obligated to,
elect to distribute such funds to each Lender ratably in accordance with such Lender’s
proportionate share of the sum of the principal amount of all outstanding Loans in repayment or
prepayment of such of the outstanding Loans or other obligations owed to such Lender, and for
application to such principal installments, as the Agent shall direct.




          SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Term Notes shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case of each
Lender and the Agent, (i) foreign, United States federal, state and local taxes imposed on its
overall net income and franchise taxes imposed on it in lieu of net income taxes by the
jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or
any political subdivision thereof, or by any jurisdiction where such Lender or the Agent (as the
case may be) is doing business or any political subdivision thereof and, in the case of each
Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any political
subdivision thereof, or by any jurisdiction where such Lender’s Applicable Lending Office is doing
business or any political subdivision thereof and (ii) United States state and local withholding
taxes (in the appropriate amount) on the gross amount of interest paid by the Borrower for which
such Lender or the Agent (as the case may be) is entitled to a credit for such withholding taxes
against a tax described in (i) (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Term Notes being
hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Term Note or any other
documents to be delivered hereunder to any Lender or the Agent, (x) the sum payable shall be
increased as may be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (y) the Borrower shall make such deductions and (z) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance with applicable law.
For the avoidance of doubt, if the Borrower shall be required by a
court of competent jurisdiction to pay over an amount other than as Taxes, there shall be no
adjustment as to such payment under this Section 2.14(a).




13









 








          (b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made
hereunder or under the Term Notes any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with respect to, this
Agreement or the Term Notes or any other documents to be delivered hereunder (hereinafter referred
to as “Other Taxes”).




          (c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as reasonably requested in writing
by the Borrower (but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service forms W-8BEN or
W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service,
properly certifying that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Term Notes. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes (and tax withheld in excess of such rate shall be included in Taxes) unless and
until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; provided, however, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender
assignor was entitled to payments under subsection (a) in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in
addition to withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender
assignee on such date. If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the
Lender reasonably considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such confidential
information. For purposes of this subsection (e), the terms “United States” and
“United States person” shall have the meanings specified in Section 7701 of the Internal
Revenue Code.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in Section 2.14(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form otherwise is not required under subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(a) or (c) with respect to
Taxes imposed by the United States by reason of such failure and the Borrower may withhold at the
full United States statutory withholding tax rate on interest (currently, 30%); provided,
however, that should a Lender become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, the Borrower shall take such steps as the
Lender shall reasonably request to assist the Lender to recover such Taxes.




          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Loans owing to it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess
of its ratable share of payments on account of the Loans obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations




14









 







in the Loans owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender’s ratable share (according to the proportion
of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off as provided in
Section 9.05) with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.




          SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
the Loans. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Term Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loan owing to, or
to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Term
Note, as applicable, in substantially the form of Exhibit A hereto, respectively, payable to the
order of such Lender in a principal amount equal to the Commitment of such Lender.




          (b) The Register maintained by the Agent pursuant to Section 9.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of a Borrowing made hereunder, the Type of Loan comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Agent from the Borrower hereunder and each Lender’s
share thereof.




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under this Agreement.




          SECTION 2.17. Use of Proceeds. The proceeds of the Loans shall be available (and the
Borrower agrees that it shall use such proceeds) to repay Debt of the Borrower, financing of
acquisitions and for general corporate purposes of the Borrower.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




          SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of
this Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:





     (a) There shall have occurred no Material Adverse Change since December 31, 2007.




     (b) There shall exist no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect other than the matters described on
Schedule 3.01(b) hereto (the “Disclosed Litigation”) or



15









 







(ii) purports to affect the
legality, validity or enforceability of this Agreement or any Term Note or the consummation
of the transactions contemplated hereby, and there shall have been no material adverse
change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto.




     (c) Nothing shall have come to the attention of the Lenders during the course of their
due diligence investigation to lead them to believe that the Information Memorandum was or
has become misleading, incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have reasonably requested.




     (d) All governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lenders) and shall remain in effect and no
law or regulation shall be applicable in the reasonable judgment of the Lenders, in each
case that restrains, prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.




     (e) The Borrower shall have notified each Lender and the Agent in writing as to the
proposed Effective Date.




     (f) The Borrower shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued reasonable fees and expenses of counsel to the Agent).




     (g) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct on
and as of the Effective Date, and




     (ii) No event has occurred and is continuing that constitutes a Default.




     (h) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for the Term
Notes) in sufficient copies for each Lender:




     (i) The Term Notes to the Lenders to the extent requested by any Lender
pursuant to Section 2.16;




     (ii) Certified copies of the resolutions of the Board of Directors of the
Borrower approving each Loan Document, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to each
Loan Document;




     (iii) Copies of the audited Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2007, and the related Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the fiscal year then
ended;




     (iv) A certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower authorized
to sign each Loan Document and the other documents to be delivered hereunder; and




     (v) A favorable opinion of the Vice President and General Counsel of the
Borrower, substantially in the form of Exhibit D hereto.



16









 





          SECTION 3.02. [RESERVED.]




          SECTION 3.03. Conditions Precedent to Each Borrowing. The obligation of each Lender
to make a Loan on the occasion of each Borrowing on the Borrowing Date shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the Borrowing Date the
following statements shall be true:





     (i) The representations and warranties contained in Section 4.01 are true and
correct on and as of such date, before and after giving effect to such Borrowing, as
though made on and as of such date except to the extent that such representations
and warranties expressly relate to an earlier specified date in which case they were
true and correct as of such date, and




     (ii) No event has occurred and is continuing, or would result from such
Borrowing that constitutes a Default.



          SECTION 3.04. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants on as follows:





     (a) The Borrower is a Person duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation.




     (b) The execution, delivery and performance by the Borrower of each Loan Document, and
the consummation of the transactions contemplated hereby, are within the Borrower’s
corporate or other powers, have been duly authorized by all necessary corporate or other
action, and do not contravene (i) the Borrower’s charter or code of regulations or
comparable organizational documents or (ii) any applicable law or any contractual
restriction in any material contract or, to the knowledge of the chief financial officer of
the Borrower, any other contract the breach of which would limit the ability of the Borrower
to perform its obligations under any Loan Document, binding on or affecting the Borrower.




     (c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for the
due execution, delivery and performance by the Borrower of any Loan Document or for the
consummation of the transactions contemplated hereby, other than authorizations, approvals,
actions, notices or filings (i) that have been duly obtained, taken, given or made and are
in full force and effect or (ii) as to which the failure to obtain, take, give or make would
not reasonably be likely to result in a Material Adverse Effect.




     (d) This Agreement has been, and each of the other Loan Documents to be delivered by it
when delivered hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and the other Loan Documents when delivered hereunder will be, the legal,
valid and binding obligation of the Borrower enforceable against the Borrower in accordance
with their respective terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors’ rights and by equitable principles (regardless of
whether enforcement is sought in equity or law).



17









 






     (e) The audited Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at December 31, 2007 and the related audited Consolidated and consolidating
statements of income and cash flows of the Borrower and its Subsidiaries for the period then
ended, and the unaudited Consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at March 31, 2008, June 30, 2008 and September 30, 2008 and the related
unaudited Consolidated and consolidating statements of income and cash flows of the Borrower
and its Subsidiaries for the period then ended, each certified by the Chief Financial
Officer of the Borrower, copies of which have been furnished to each Lender, fairly present,
to the Chief Financial Officer’s best knowledge, the Consolidated and consolidating
financial condition of the Borrower and its Subsidiaries as at such date and the
Consolidated and consolidating results of operations of the Borrower and its Subsidiaries
for the period ended on such date, all in accordance with GAAP. Since December 31, 2007,
there has been no Material Adverse Change.




     (f) There is no pending or, to the Borrower’s knowledge, threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect
(other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the consummation of the
transactions contemplated hereby, and there has been no adverse change in the status, or
financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.




     (g) Any information, exhibit or report (other than with respect to any projections made
by the Borrower) that has been provided to the Agent or any Lender on behalf of the Borrower
(and has otherwise been disclosed pursuant to any public filing by the Borrower), in
connection with the negotiation and syndication of this Agreement or pursuant to the terms
of this Agreement is, taken as a whole, complete and correct in all material respects and
does not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading in light of the
circumstances under which such statements were or are made.




     (h) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any 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.




     (i) The Borrower is not is an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Borrower Act of 1940, as amended.




     (j) The Borrower is, individually and together with its Subsidiaries, Solvent.
“Solvent” means, with respect to any Person on a particular date, that on such date
(i) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the
present fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature and (iv) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.




18









 




ARTICLE V




COVENANTS OF THE BORROWERS




          SECTION 5.01. Affirmative Covenants. So long as any Loan shall remain unpaid, the
Borrower will:





     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and Environmental
Laws.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and for which appropriate reserves
shall have been taken in accordance with GAAP.




     (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates; provided, however, that the Borrower and its
Subsidiaries may self-insure to the extent consistent with prudent business practice.




     (d) Preservation of Corporate Existence, Etc. Preserve and maintain and cause
each of its Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory) and franchises; provided, however, that the Borrower and its
Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(b) and
provided further that neither the Borrower nor any of its Subsidiaries shall
be required to preserve any right or franchise if the Board of Directors (or equivalent
governing body) of the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.




     (e) Visitation Rights. At any reasonable time and from time to time, upon
reasonable notice and during normal business hours, permit the Agent or any of the Lenders
or any agents or representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the Borrower and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any
of its Subsidiaries with any of their officers or directors and with their independent
certified public accountants.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries (in all material respects)
shall be made of all financial transactions and the assets and business of the Borrower and
each such Subsidiary in accordance with GAAP in effect from time to time.




     (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve (in all material respects), all of its properties
that are used or useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted.




     (h) Reporting Requirements. Furnish to the Lenders:




     (i) as soon as available and in any event within 45 days after the end of each
of the first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject to year-end



19









 







audit
adjustments) by the chief financial officer of the Borrower as having been prepared
in accordance with GAAP and certificates of the chief financial officer of the
Borrower as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03;




     (ii) as soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, a copy of the annual report for such year for the
Borrower and its Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable to the Required
Lenders by Deloitte & Touche LLP or other independent public accountants reasonably
acceptable to the Required Lenders. There shall also be provided, in reasonable
detail, the calculations necessary to demonstrate compliance with Section 5.03;




     (iii) as soon as possible and in any event within five days after a responsible
officer of the Borrower knows or should have known of the occurrence of each Default
continuing on the date of such statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default and the action that the
Borrower has taken and/or proposes to take with respect thereto;




     (iv) promptly after the sending or filing thereof, copies of all reports that
the Borrower sends to any of its security holders, and copies of all reports and
registration statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities exchange;




     (v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and




     (vi) such other information respecting the Borrower or any of its Subsidiaries
as any Lender through the Agent may from time to time reasonably request.




     (i) Pari Passu Status. Ensure that the Debt outstanding under this Agreement
and the Term Notes ranks at least pari passu with all other senior unsecured
Debt of the Borrower and each other Borrower.




     (j) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or
such Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person
not an Affiliate.



          SECTION 5.02. Negative Covenants. So long as any Loan shall remain unpaid, the
Borrower will not:





     (a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien on or with respect to any of its properties, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:




     (i) Liens existing on the Effective Date and described on Schedule 5.02(a)
hereto,




     (ii) purchase money Liens upon or in any real property or equipment acquired or
held by the Borrower or any Subsidiary in the ordinary course of business (including
any Lien in respect of a capitalized lease of personal property) to secure the
purchase price of such property or equipment or to secure Debt incurred solely for
the purpose of financing the acquisition or lease of




20











 






such property or equipment, or
Liens existing on such property or equipment at the time of its acquisition (other
than any such Liens created in contemplation of such acquisition that were not
incurred to finance the acquisition of such property) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover any
properties of any character other than the real property or equipment being acquired
or leased, and no such extension, renewal or replacement shall extend to or cover
any properties not theretofore subject to the Lien being extended, renewed or
replaced,




     (iii) Liens asserted by warehousemen, mechanics or materialmen which Liens are
being contested in good faith by appropriate proceedings diligently conducted and
for which reserves in accordance with GAAP are being maintained on the books of the
Borrower and any mechanic’s, carrier’s, landlord’s or similar common law or
statutory lien incurred in the normal course of business which has not been docketed
as a judgment,




     (iv) Liens or levies for taxes, fees, assessments or governmental charges not
yet due and payable or being contested in good faith by appropriate proceedings
diligently conducted and Liens resulting from or incurred with respect to legal
proceedings which are being contested in good faith by appropriate proceedings
diligently conducted; provided that reserves in accordance with GAAP are
being maintained on the books of the Borrower with respect to such taxes, fees,
assessments, governmental charges and legal proceedings,




     (v) Liens securing only workers’ compensation, unemployment insurance or
similar obligations and/or deposits or pledges made in connection with, or to secure
payment of, utilities or similar services, leases, workers’ compensation,
unemployment insurance, old age pensions or other social security obligations,




     (vi) Encumbrances as set forth in all deeds, title insurance and mortgages
existing as of the Effective Date in respect of all real property owned or leased by
the Borrower or any of its Subsidiaries and any other zoning or deed restrictions,
public utility easements, minor title irregularities and similar matters having no
material adverse effect as a practical matter on the ownership or use of any of the
real property in question,




     (vii) Liens securing or given in lieu of surety, stay, appeal or performance
bonds (other than contracts for the payment of indebtedness for borrowed money), or
deposits required by law or governmental regulations or by any court order, decree,
judgment or rule or as a condition to the transaction of business or the exercise of
any right, privilege or license, or Liens arising from a judgment not constituting
an Event of Default,




     (viii) Interest or title of a lessor under a lease,




     (ix) Liens in favor of the Agent or a Lender, if any, to secure the obligations
of the Borrower under the Loan Documents,




     (x) Liens created or assumed in purchasing, constructing or improving any real
property or to which any real property is subject when purchased; provided,
however, that: (x) the mortgage, security interest or other lien is
confined to the property in question, and (y) the indebtedness secured thereby is
non-recourse as to the Borrower and does not exceed the total cost of the purchase,
construction or improvement,




     (xi) Any transfer of a check or other medium of payment for deposit or
collection, or any similar transaction in the normal course of business,




     (xii) Any financing statement perfecting a security interest that would be
permissible under this Section 5.02(a),



21









 






     (xiii) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes
a Subsidiary of the Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary,




     (xiv) other Liens securing Debt in an aggregate principal amount not to exceed
at any time outstanding 2% of Consolidated Tangible Net Assets at the time such Lien
is incurred, and




     (xv) the replacement, extension or renewal of any Lien permitted by clause (i),
(ii), (viii), (ix) or (xii) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt secured thereby.




     (b) Mergers, Acquisitions, Etc. Merge with or into or consolidate with any
other Person; liquidate, wind up, dissolve or divide; acquire all or substantially all of
the properties or assets of any ongoing concern or going line of business; acquire all or
substantially all of the capital stock or other equity interests in or of any other Person
other than in the ordinary course of business; or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, or permit any of its Subsidiaries to
do any of the foregoing, except:




     (i) the Borrower or any Subsidiary of the Borrower may acquire all or
substantially all of the properties or assets or going line of business of any other
Person, acquire all or substantially all of the capital stock or other equity
interests in or of any other Person, or become or remain liable (contingently or
otherwise) to do any of the foregoing; and




     (ii) a directly or indirectly wholly owned Subsidiary of the Borrower (or any
Subsidiary of such Subsidiary) may (x) merge with or into or consolidate with or
into any other wholly owned Subsidiary of the Borrower (or any Subsidiary of such
Subsidiary) or (y) may merge with the Borrower, provided that the Borrower
shall be the surviving corporation.




provided further, in the case of each transaction permitted in clauses (i)
and (ii)(x), that no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.




     (c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or
permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets,
or grant any option or other right to purchase, lease or otherwise acquire any assets,
except (i) sales of inventory in the ordinary course of its business, (ii) sales, transfers
or other dispositions of obsolete or worn-out tools, equipment or other property (including
leasehold interests) no longer used or useful in business and sales of intellectual property
determined to be uneconomical, negligible or obsolete, (iii) sales, leases, transfers and
other dispositions of assets (other than Foreign Assets) by any Subsidiary to the Borrower
or any of its Subsidiaries, (iv) sales, leases, transfers and other dispositions of Foreign
Assets by the Borrower or any of its Subsidiaries to the Borrower or any of its
Subsidiaries, and (v) in addition to the sales permitted in clauses (i), (ii), (iii) and
(iv) above, sales of assets for fair value, provided that in the case of the sale of
any asset pursuant to this clause (v) in a single transaction or a series of related
transactions in an aggregate amount exceeding $20,000,000, the fair value of such asset
shall have been determined in good faith by the Board of Directors of the Borrower.




     (d) [RESERVED.]




     (e) Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter
into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its or their Subsidiaries to
declare or pay dividends or other distributions in



22









 







respect of its equity interests or repay
or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or
invest in, the Borrower or any Subsidiary of the Borrower (whether through a covenant
restricting dividends, loans, asset transfers or investments, a financial covenant or
otherwise), except (i) any agreement or instrument evidencing Debt existing on the date
hereof and (ii) any agreement in effect at the time such Subsidiary becomes a Subsidiary of
the Borrower, so long as such agreement was not entered into solely in contemplation of such
Person becoming a Subsidiary of the Borrower.




     (f) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as required
or permitted by GAAP.




     (g) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of the business of the Borrower and its Subsidiaries
considered as a whole as carried on at the date hereof.



          SECTION 5.03. Financial Covenants. So long as any Loan shall remain unpaid, the
Borrower will:




     (a) Debt/EBITDA Ratio. Maintain a ratio of Consolidated Debt to Consolidated
EBITDA for the period of twelve months most recently ended on or prior to the last day of
each fiscal quarter of not greater than 3.50 : 1.00; provided, however, the
$381.8 million senior notes due October 1, 2009 to be repaid by the Borrower shall be
excluded from the calculation of Consolidated Debt for all reporting periods prior to
October 1, 2009.




     (b) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA for the
period of four quarters most recently ended to cash interest payable on, and amortization of
debt discount in respect of, all Debt during such period, by the Borrower and its
Subsidiaries of not less than 3.50 : 1.00.



ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:




     (a) The Borrower shall fail to pay any principal of any Loan when the same becomes due
and payable; or the Borrower shall fail to pay any interest on any Loan or make any other
payment of fees or other amounts payable under this Agreement or any Term Note within four
Business Days after the same becomes due and payable; or




     (b) Any representation or warranty made by the Borrower herein or by the Borrower (or
any of its corporate officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or




     (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e) or (h), 5.02 or 5.03, or (ii) the Borrower shall fail to
perform or observe any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain unremedied for 15 days after
written notice thereof shall have been given to the Borrower by the Agent or any Lender; or




     (d) (i)(A) The Borrower or any of its Subsidiaries shall fail to pay any principal of
or premium or interest on any Debt pursuant to the Existing Credit Agreement when and as the
same shall become due and payable, or (B) any other event or condition occurs, that results
in an Event of Default (as such term is defined in the Existing Credit Agreement) under the
Existing Credit Agreement; or (ii) the Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that



23









 







is outstanding in a principal
amount of at least $25,000,000 in the aggregate at any one time (but excluding Debt
outstanding hereunder) of the Borrower or such Subsidiary (as the case may be) when the same
becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to
be due and payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or




     (e) The Borrower or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set forth above in this
subsection (e); or




     (f) Judgments or orders for the payment of money in excess of $25,000,000 in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; provided, however, that any such judgment or order shall not
be an Event of Default under this Section 6.01(f) if and for so long as (i) the amount of
such judgment or order is covered by a valid and binding policy or policies of insurance
between the defendant and the insurer(s) covering payment thereof, subject to any
deductibles on self-insured retentions applicable to such insurance, and (ii) such insurer,
which shall be rated at least “A” by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, the amount of such judgment or order; or




     (g) (i) Any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting Stock) representing
20% or more of the combined voting power of all Voting Stock of the Borrower; or (ii) during
any period of up to 24 consecutive months, commencing before or after the date of this
Agreement, individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the board of directors of
the Borrower; or




     (h) The Borrower or any of its ERISA Affiliates shall incur, or, in the reasonable
opinion of the Required Lenders, shall be reasonably likely to incur liability in excess of
$25,000,000 in the aggregate as a result of the occurrence of any ERISA Event.


then, and in any such event, the Agent shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, (i) terminate the Commitments and thereupon the
Commitments shall forthwith terminate and (ii) declare the Loans, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable, whereupon the Loans,
all such interest and all such amounts shall become and be forthwith due and


24









 






payable, without
presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Loans shall automatically be terminated and (B) the
Loans, all such interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.




ARTICLE VII




[RESERVED]




ARTICLE VIII




THE AGENT




               SECTION 8.01. Authorization and Action. Each Lender hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement (including, without limitation, enforcement or collection of the Term Notes), the
Agent shall not be required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be binding upon all
Lenders and all holders of Term Notes; provided, however, that the Agent shall not
be required to take any action that exposes the Agent to personal liability or that is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.



               SECTION 8.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Loan as the holder of the Debt resulting therefrom until the Agent
receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier or telegram) believed by it to be genuine
and signed or sent by the proper party or parties.



               SECTION 8.03. KeyBank and Affiliates. With respect to its Commitments, the Loans
made by it and the Term Notes issued to it, KeyBank shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it were not the Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include KeyBank in its
individual capacity. KeyBank and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and generally engage in any kind of
business with, the Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if KeyBank were not the Agent and without
any duty to account therefor to the Lenders. The Agent shall have no duty to disclose information
obtained or received by it or any of its affiliates relating to the Borrower or its Subsidiaries to
the extent such information was obtained or received in any capacity other than as Agent.



25









 





               SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement.



               SECTION 8.05. Indemnification. The Lenders agree to indemnify the Agent and its
directors, officers, employees and agents (to the extent not promptly reimbursed by the Borrower),
ratably according to the respective principal amounts of the Term Notes then held by each of them
(or if no Term Notes are at the time outstanding or if any Term Notes are held by Persons which are
not Lenders, ratably according to the respective amounts of their Commitments), from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent and its directors, officers, employees and agents in any way relating to
or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted
by the Agent and its directors, officers, employees, agents and advisors under this Agreement or
any of the other Loan Documents, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent’s (or its directors’, officers’, employees’, agents’ or
advisors’) gross negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including, without limitation, fees and expenses of counsel) incurred by
the Agent and its directors, officers, employees and agents in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents, to the extent that the
Agent and its directors, officers, employees and agents is not reimbursed for such expenses by the
Borrower. The failure of any Lender to reimburse the Agent and its directors, officers, employees
and agents promptly upon demand for its ratable share of any amount required to be paid by the
Lender to the Agent and its directors, officers, employees, agents and advisors as provided herein
shall not relieve any other Lender of its obligation hereunder, to reimburse the Agent and its
directors, officers, employees and agents for its ratable share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse the Agent and its directors,
officers, employees and agents for such Lender’s ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender hereunder, the agreement and obligations of
any Lender contained in this Section 8.05 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the Term Notes.



               SECTION 8.06. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent with the consent of the Borrower, which consent shall not be
unreasonably withheld and shall not be required if any Event of Default has occurred and is
continuing. If no successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After any retiring
Agent’s resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.



               SECTION 8.07. Other Agents. Each Lender hereby acknowledges that neither the
documentation agent nor any other Lender designated as any “Agent” on the signature pages hereof
(other than the Agent) has any liability hereunder other than in its capacity as a Lender.





26









 





ARTICLE IX



MISCELLANEOUS




               SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Term Notes shall in any event be effective unless the same shall be in writing and
signed by the Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by each affected Lender,
do any of the following: (a) waive any of the conditions specified in Section 3.01, (b) reduce the
principal of, or interest on, the Loans or any fees or other amounts payable hereunder,
(c) postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees
or other amounts payable hereunder, (d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans, or the number of Lenders, that shall be required
for the Lenders or any of them to take any action hereunder, (e) amend this Section 9.01 or (i)
amend or waive any provision of this Agreement in any manner that would adversely affect such
Lender’s right to receive its ratable share of any payment made or proceeds distributed to which it
is entitled under the Loan Documents; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent under this Agreement
or any Term Note.



               SECTION 9.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (a) in writing (including facsimile or telegraphic communication) and
mailed, faxed, telegraphed or delivered or (y) as and to the extent set forth in Section 9.02(c)
and in the proviso to this Section 9.02(a), if to the Borrower, at 29400 Lakeland Blvd., Wickliffe,
Ohio 44092-2298, Attention: Treasurer (with a copy to the Borrower’s legal division at the same
address); if to any Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the Agent, at its address
at 127 Public Square, Cleveland, Ohio 44114, Attention: Kathy Koenig; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent, provided that materials required to be delivered
pursuant to Section 5.01(h)(i), (ii) or (iv) shall be delivered to the Agent as specified in
Section 9.02(c). All such notices and communications shall, when mailed, faxed, telegraphed or
e-mailed, be effective when deposited in the mails, faxed, delivered to the telegraph company or
confirmed by e-mail, respectively, except that notices and communications to the Agent pursuant to
Article II, III or VIII shall not be effective until received by the Agent. Delivery by facsimile
or e-mail of an executed counterpart of any amendment or waiver of any provision of this Agreement
or the Term Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.



               (b) So long as KeyBank or any of its Affiliates is the Agent, materials required to be
delivered pursuant to Section 5.01(h)(i), (ii) and (iv) shall be delivered to the Agent in an
electronic medium in a format reasonably acceptable to the Agent and the Lenders by facsimile at
(216) 370-6113 and by e-mail at Kathy_Koenig@keybank.com. The Borrower agrees that the Agent may
make such materials, as well as any other written information, documents, instruments and other
material relating to the Borrower, any of its Subsidiaries or any other materials or matters
relating to this Agreement, the Term Notes or any of the transactions contemplated hereby
(collectively, the “Communications”) available to the Lenders by posting such notices on
SyndTrack 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 Agent nor any of its
Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform
and each expressly disclaims liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Agent or any of its Affiliates in
connection with the Platform.



               (c) Each Lender agrees that notice to it (as provided in the next sentence) (a
“Notice”) specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials to such Lender for
purposes of this Agreement; provided that if requested by any Lender the Agent shall
deliver a copy of the Communications to such Lender by e-mail or facsimile. Each Lender agrees (i)
to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by



27









 







electronic transmission (including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on
record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.



               SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Term Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.



               SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable, out-of-pocket costs and expenses of only the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this Agreement, the Term Notes
and the other documents to be delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under this Agreement. The Borrower further agrees to pay on demand
all costs and expenses of the Agent and each of the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Term Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).



               (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
awarded against any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) the Term Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified
Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought by the Borrower,
its directors, equityholders or creditors or an Indemnified Party or any other Person, whether or
not any Indemnified Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender, any of their Affiliates,
or any of their respective directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Term Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds of the Loans.



               (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Loan is made by the
Borrower to or for the account of a Lender (i) other than on the last day of the Interest Period
for such Loan, as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Term Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Loan
upon an assignment of rights and obligations under this Agreement pursuant to Section 9.07 as a
result of a demand by the Borrower pursuant to Section 9.07(a) or (ii) as a result of a payment or
Conversion pursuant to Section 2.08, 2.10 or 2.12, the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender
any amounts required to compensate such Lender for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment or Conversion, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Loan.



               (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 9.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Term Notes.



28









 





               SECTION 9.05. Right of Set-off. Upon either (a) the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or 6.01 (e) or (b) (i) the occurrence and
during the continuance of any other Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to declare the Loans due
and payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Term Note held by such Lender, whether or
not such Lender shall have made any demand under this Agreement or such Term Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its Affiliates under this
Section 9.05 are in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.



               SECTION 9.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that no Borrower shall have the right to
assign its rights hereunder or any interest herein without the prior written consent of the
Lenders.



               SECTION 9.07. Assignments and Participations. (a) Each Lender may and, if demanded
by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least
five Business Days’ notice to such Lender and the Agent, will assign to one or more Persons all or
a portion of its rights and obligations under this Agreement (including, without limitation, the
Loans owing to it, and the Term Note or Term Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under and in respect of the Facility, (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an assignment of all of a
Lender’s rights and obligations under this Agreement, the amount of the Loans of the assigning
Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof unless, in each case, the Borrower and the Agent
agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 9.07(a) shall be arranged by the
Borrower after consultation with the Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment as a result of a demand by the
Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Loans owing to such Lender,
together with accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Term Note subject to such assignment and
a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Borrower, such recordation fee
shall be payable by the Borrower except that no such recordation fee shall be payable in the case
of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing
Lender, and (vii) any Lender may, without the approval of the Borrower and the Agent, assign all or
a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Section 2.11, 2.14 and 9.04 to the
extent any claim thereunder relates to an event arising prior such assignment) and be released from
its obligations under this Agreement (and, in the case of an



29









 







Assignment and Acceptance covering all
or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).



               (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by it as a Lender.



               (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Term Note or Term Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give prompt notice thereof
to the Borrower.



               (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and principal amount of the Loans owing to, each Lender from
time to time (the “Register”). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.



               (e) Each Lender may sell participations to one or more banks or other entities (other than the
Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, the Loans owing to it and any Term Note or Term
Notes held by it); provided, however, that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder
of any such Term Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Term Note, or any consent to
any departure by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Term Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Term Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.



               (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree



30









 







to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it from such Lender.



               (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Loans owing to it and any Term Note or Term Notes held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of
the Federal Reserve System.



               SECTION 9.08. Confidentiality. Neither the Agent nor any Lender shall disclose any
Confidential Information to any other Person without the written consent of the Borrower, other
than (a) to the Agent’s or such Lender’s Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 9.07(f), to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule
or regulation or judicial process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.



               SECTION 9.09. Governing Law. This Agreement and the Term Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.



               SECTION 9.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.



               SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the Term Notes, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State court or, to the
extent permitted by law, in such federal court. The Borrower hereby agrees that service of process
in any such action or proceeding brought in the any such New York State court or in such federal
court may be made upon the Borrower at its address set forth in Section 9.02 and the Borrower
hereby irrevocably appoints the Borrower its authorized agent to accept such service of process,
and agrees that the failure of the Borrower to give any notice of any such service shall not impair
or affect the validity of such service or of any judgment rendered in any action or proceeding
based thereon. The Borrower hereby further irrevocably consents to the service of process in any
action or proceeding in such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to the Borrower at its address specified pursuant to Section 9.02.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or the Term Notes in
the courts of any jurisdiction.



               (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Term
Notes in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.



               SECTION 9.12. [RESERVED.]



               SECTION 9.13. [RESERVED.]



               SECTION 9.14. Patriot Act. Each Lender 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”), it



31









 







is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.



               SECTION 9.15. Waiver of Jury Trial. The Borrower, the Agent and the Lenders hereby
irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this Agreement or the Term
Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.



32









 





               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.



	 	 	 	 	 
	 	THE LUBRIZOL CORPORATION

 	 
	 	By  	/s/ Charles P. Cooley
 	 
	 	 	Name:  	Charles P. Cooley 	 
	 	 	Title:  	Senior Vice President, Treasurer

and Chief Financial Officer 	 



	 	 	 	 	 
	 	By  	                         /s/ Greg D. Taylor
 	 
	 	 	Name:  	Greg D. Taylor 	 
	 	 	Title:  	Vice President Planning, Development

 and Communications 	 
	 














 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

        as Agent

 	 
	 	By  	/s/ Brian P. Fox
 	 
	 	 	Name:  	Brian P. Fox 	 
	 	 	Title:  	Assistant Vice President 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC Bank, National Association

 	 
	 	By  	/s/ Joseph G. Moran
 	 
	 	Name:  	Joseph G. Moran 	 
	 	Title:  	Senior Vice President 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ,

LTD., as a Bank

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













 






	 	 	 	 	 



	 	 	 	 	 
	 	The Northern Trust Company

 	 
	 	By  	/s/ Jeffrey P. Sullivan
 	 
	 	Name:  	Jeffrey P. Sullivan 	 
	 	Title:  	Vice President 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	Wells Fargo Bank, N.A.

 	 
	 	By  	/s/ Steven Buehler
 	 
	 	Name:  	Steven Buehler 	 
	 	Title:  	Senior Relationship Manager 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. Bank National Association

 	 
	 	By  	/s/ Kenneth R. Fieler
 	 
	 	Name:  	Kenneth Fieler 	 
	 	Title:  	Assistant Vice President 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	Fifth Third Bank

 	 
	 	By  	/s/ Roy C. Lanctot
 	 
	 	Name:  	Roy C. Lanctot 	 
	 	Title:  	Vice President 	 
	 














 






SCHEDULE I




THE LUBRIZOL CORPORATION

THREE YEAR CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 	 	 
	Name of Initial Lender	 	Commitment	 	Domestic Lending Office	 	Eurodollar Lending Office
	KeyBank National Association

	 	US $ 25,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	PNC Bank, National Association

	 	US $ 25,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	Bank
of Tokyo – Mitsubishi

	 	US $ 20,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	The Northern Trust Company

	 	US $ 20,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	FirstMerit Bank, N.A.

	 	US $ 15,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	Wells Fargo Bank, National

	 	US $ 15,000,000
	 	[                    ]

	 	[                    ]

	Association

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
















 






	 	 	 	 	 	 	 
	Name of Initial Lender	 	Commitment	 	Domestic Lending Office	 	Eurodollar Lending Office
	US Bank, National Association

	 	US $ 20,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]
	 
	 	 	 	 	 	 
	Fifth Third Bank

	 	US $ 10,000,000
	 	[                    ]

	 	[                    ]

	 

	 	 	 	[                    ]

	 	[                    ]

	 

	 	 	 	Attn: [                    ]
	 	Attn: [                    ]
	 

	 	 	 	T: [                    ]
	 	T: [                    ]
	 

	 	 	 	F: [                    ]
	 	F: [                    ]