Exhibit 4.1



 






EXHIBIT 4.1




Execution Copy




 





FOURTH AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of December 23, 2005




among




ROBBINS & MYERS, INC.,




ROBBINS & MYERS FINANCE EUROPE B.V.,




THE LENDERS NAMED HEREIN,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and

Issuing Bank,




HARRIS N.A.,

as Syndication Agent,




and




NATIONAL CITY BANK,

as Documentation Agent




 





J.P. MORGAN SECURITIES INC.,

SOLE LEAD ARRANGER AND SOLE BOOK MANAGER




 









 





Table of Contents




Page




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Terms Generally
	 	 	25	 
	SECTION 1.03. Types of Borrowings
	 	 	25	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	THE CREDITS
	 	 	26	 
	 
	 	 	 	 
	SECTION 2.01. Revolving Credit Facility
	 	 	26	 
	SECTION 2.02. Commitment to Make Loans
	 	 	26	 
	SECTION 2.03. Loans
	 	 	27	 
	SECTION 2.04. Notice of Borrowings
	 	 	29	 
	SECTION 2.05. Noteless Agreement; Repayment of Loans
	 	 	30	 
	SECTION 2.06. Fees
	 	 	32	 
	SECTION 2.07. Interest on Loans
	 	 	33	 
	SECTION 2.08. Default Interest
	 	 	33	 
	SECTION 2.09. Alternate Rate of Interest
	 	 	33	 
	SECTION 2.10. Termination and Reduction of Commitments; Increase of Commitments
	 	 	34	 
	SECTION 2.11. Conversion and Continuation Options
	 	 	35	 
	SECTION 2.12. Mandatory Repayments and Prepayments
	 	 	37	 
	SECTION 2.13. Optional Prepayments
	 	 	38	 
	SECTION 2.14. Reserve Requirements; Change in Circumstances
	 	 	39	 
	SECTION 2.15. Change in Legality
	 	 	40	 
	SECTION 2.16. Indemnity
	 	 	41	 
	SECTION 2.17. Pro Rata Treatment
	 	 	42	 
	SECTION 2.18. Sharing of Setoffs
	 	 	42	 
	SECTION 2.19. Payments
	 	 	43	 
	SECTION 2.20. Taxes
	 	 	44	 
	SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate
	 	 	47	 
	SECTION 2.22. Swingline Loans
	 	 	48	 
	SECTION 2.23. Letters of Credit
	 	 	49	 
	SECTION 2.24. Existing Letters of Credit
	 	 	55	 
	SECTION 2.25. Extension of Revolving Credit Maturity Date
	 	 	55	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	55	 
	 
	 	 	 	 
	SECTION 3.01. Organization, Powers
	 	 	55	 






i









 






	 	 	 	 	 
	SECTION 3.02. Authorization
	 	 	55	 
	SECTION 3.03. Enforceability
	 	 	56	 
	SECTION 3.04. Consents and Governmental Approvals
	 	 	56	 
	SECTION 3.05. Financial Statements, Undisclosed Liabilities
	 	 	56	 
	SECTION 3.06. No Material Adverse Change
	 	 	56	 
	SECTION 3.07. Title to Properties, Possession Under Leases
	 	 	56	 
	SECTION 3.08. Subsidiaries
	 	 	57	 
	SECTION 3.09. Litigation; Compliance with Laws
	 	 	57	 
	SECTION 3.10. Agreements
	 	 	58	 
	SECTION 3.11. Federal Reserve Regulations
	 	 	58	 
	SECTION 3.12. Investment Company Act; Public Utility Holding Company Act
	 	 	58	 
	SECTION 3.13. Use of Proceeds
	 	 	58	 
	SECTION 3.14. Tax Returns
	 	 	59	 
	SECTION 3.15. No Material Misstatements
	 	 	59	 
	SECTION 3.16. Employee Benefit Plans
	 	 	59	 
	SECTION 3.17. Environmental and Safety Matters
	 	 	60	 
	SECTION 3.18. Security Interests
	 	 	60	 
	SECTION 3.19. Solvency
	 	 	61	 
	SECTION 3.20. Transactions with Affiliates and Shareholders
	 	 	61	 
	SECTION 3.21. Insurance
	 	 	62	 
	SECTION 3.22. Labor Matters
	 	 	62	 
	SECTION 3.23. Reportable Transaction
	 	 	62	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	CONDITIONS OF LENDING
	 	 	63	 
	 
	 	 	 	 
	SECTION 4.01. Conditions Precedent to the Effective Date
	 	 	63	 
	SECTION 4.02. All Credit Events
	 	 	66	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	67	 
	 
	 	 	 	 
	SECTION 5.01. Existence, Businesses and Properties
	 	 	67	 
	SECTION 5.02. Insurance
	 	 	67	 
	SECTION 5.03. Obligations and Taxes
	 	 	68	 
	SECTION 5.04. Financial Statements, Reports, etc
	 	 	68	 
	SECTION 5.05. Other Information
	 	 	70	 
	SECTION 5.06. ERISA
	 	 	71	 
	SECTION 5.07. Maintaining Records, Access to Properties and Inspections
	 	 	72	 
	SECTION 5.08. Use of Proceeds
	 	 	72	 
	SECTION 5.09. Interest Rate Protection Agreements
	 	 	72	 
	SECTION 5.10. Fiscal Year
	 	 	72	 
	SECTION 5.11. Compliance with Environmental Laws; Preparation of Environmental Reports
	 	 	72	 
	SECTION 5.12. Subsidiaries
	 	 	73	 






 









 






	 	 	 	 	 
	SECTION 5.13. Further Assurances
	 	 	73	 
	SECTION 5.14. Foreign Subsidiaries
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	74	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	74	 
	SECTION 6.02. Negative Pledge
	 	 	76	 
	SECTION 6.03. Certain Amendments
	 	 	78	 
	SECTION 6.04. Investments, Loans and Advances
	 	 	78	 
	SECTION 6.05. Mergers, Consolidations, Dispositions and Acquisitions
	 	 	80	 
	SECTION 6.06. Dividends, Distributions and Other Restricted Payments
	 	 	82	 
	SECTION 6.07. Impairment of Security Interests
	 	 	83	 
	SECTION 6.08. Limitation on Restrictions on Subsidiary Dividends, etc
	 	 	83	 
	SECTION 6.09. No Other Negative Pledges
	 	 	84	 
	SECTION 6.10. Transactions with Affiliates and Shareholders
	 	 	84	 
	SECTION 6.11. Business of Borrower and Subsidiaries
	 	 	84	 
	SECTION 6.12. Capital Expenditures
	 	 	84	 
	SECTION 6.13. Financial Covenants
	 	 	85	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	EVENTS OF DEFAULT
	 	 	85	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT AND ISSUING BANK
	 	 	89	 
	 
	 	 	 	 
	SECTION 8.01. Appointment and Authorization
	 	 	89	 
	SECTION 8.02. Liability of the Administrative Agent
	 	 	90	 
	SECTION 8.03. Action by the Administrative Agent
	 	 	90	 
	SECTION 8.04. Successor Administrative Agent
	 	 	90	 
	SECTION 8.05. Administrative Agent and Affiliate
	 	 	91	 
	SECTION 8.06. Indemnification
	 	 	91	 
	SECTION 8.07. Credit Decision
	 	 	92	 
	SECTION 8.08. Collateral Agency Agreement
	 	 	92	 
	SECTION 8.09. Syndication Agent, Documentation Agent, etc
	 	 	92	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	92	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	92	 
	SECTION 9.02. Survival of Agreement and Indemnities
	 	 	93	 
	SECTION 9.03. Binding Effect
	 	 	93	 
	SECTION 9.04. Successors and Assigns
	 	 	93	 






 









 






	 	 	 	 	 
	SECTION 9.05. Expenses; Indemnity
	 	 	97	 
	SECTION 9.06. Right of Setoff
	 	 	99	 
	SECTION 9.07. Applicable Law
	 	 	99	 
	SECTION 9.08. Waivers; Amendment
	 	 	100	 
	SECTION 9.09. Interest Rate Limitation
	 	 	101	 
	SECTION 9.10. Entire Agreement
	 	 	101	 
	SECTION 9.11. Severability
	 	 	101	 
	SECTION 9.12. Counterparts
	 	 	101	 
	SECTION 9.13. Headings
	 	 	102	 
	SECTION 9.14. Remedies
	 	 	102	 
	SECTION 9.15. Jurisdiction, Consent to Service of Process; Waiver of Jury Trial
	 	 	102	 
	SECTION 9.16. Legend
	 	 	103	 
	SECTION 9.17. Judgment Currency
	 	 	103	 
	SECTION 9.18. Confidentiality
	 	 	104	 
	SECTION 9.19. USA PATRIOT Act
	 	 	104	 
	 
	 	 	 	 
	ARTICLE X
	 	 	104	 
	 
	 	 	 	 
	SECTION 10.01. Guaranty of Payment
	 	 	104	 
	SECTION 10.02. Acceptance of Guaranty; No Setoffs
	 	 	105	 
	SECTION 10.03. Nature of Guaranty; Continuing, Absolute and Unconditional
	 	 	105	 
	SECTION 10.04. Dealings with the Subsidiary Borrower
	 	 	106	 
	SECTION 10.05. Subrogation
	 	 	106	 
	SECTION 10.06. Collateral
	 	 	107	 
	SECTION 10.07. Rights to Payments, Etc
	 	 	107	 
	SECTION 10.08. No Waiver
	 	 	107	 
	SECTION 10.09. Setoff
	 	 	108	 
	SECTION 10.10. Severability
	 	 	108	 
	SECTION 10.11. Miscellaneous
	 	 	108	 






 









 






	 	 	 
	Schedules	 	 
	Schedule 1.01

	 	Subsidiaries
	Schedule 1.02

	 	Existing Letters of Credit
	Schedule 2.02(a)

	 	Revolving Credit Commitment
	Schedule 3.05(b)

	 	Liabilities
	Schedule 3.08

	 	Subsidiaries
	Schedule 3.09

	 	Litigation; Compliance with Laws
	Schedule 3.10

	 	Material Contracts
	Schedule 3.16

	 	Employee Benefit Plans
	Schedule 3.17

	 	Environmental Matters
	Schedule 3.18

	 	Filings
	Schedule 3.20

	 	Transactions with Affiliates and Shareholders
	Schedule 3.22

	 	Labor Matters
	Schedule 5.14

	 	Foreign Wholly-Owned Subsidiaries
	Schedule 6.01

	 	Indebtedness
	Schedule 6.02

	 	Liens
	Schedule 6.04

	 	Investments






	 	 	 
	Exhibits	 	 
	Exhibit A-1

	 	Form of Revolving Credit Note
	Exhibit A-2

	 	Form of Swingline Note
	Exhibit B-1

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

	 	Form of Subsidiaries’ Consent and Agreement
	Exhibit C

	 	Form of Intercompany Note
	Exhibit D

	 	Form of Assignment and Acceptance
	Exhibit E-1

	 	Form of Opinion of Counsel to Borrower
	Exhibit E-2

	 	Form of Opinion of Counsel to Subsidiary Borrower
	Exhibit F

	 	Form of Compliance Certificate
	Exhibit G

	 	Form of Supplemental Agreement
	Exhibit H-1

	 	Form of Notice of Borrowing/Conversion
	Exhibit H-2

	 	Form of Notice of Foreign Currency Revolving Loan Borrowing
	Exhibit I

	 	Form of Subordinated Note






i









 





     FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 23, 2005, among ROBBINS &
MYERS, INC., an Ohio corporation, ROBBINS & MYERS FINANCE EUROPE B.V., a Netherlands corporation,
the Lenders (as defined in this Amended Agreement), and JPMORGAN CHASE BANK, N.A., a national
banking association and successor by merger to Bank One, NA, as Administrative Agent and an Issuing
Bank.



RECITALS




     The Borrower (such term, and all other capitalized terms in this paragraph, being used as
defined in this Amended Agreement below) requested the Existing Lenders to extend or continue, and
the Existing Lenders extended or continued on October 7, 2003, credit to the Borrower in an
aggregate principal Dollar Amount of up to $125,000,000 pursuant to the terms and conditions of the
Existing Credit Agreement. The Borrower has requested that certain amendments and modifications be
made to the Existing Credit Agreement. The Lenders are willing to do so upon the terms and subject
to the conditions set forth herein. Accordingly, the parties hereto agree that, on the Effective
Date, this Amended Agreement will become effective and the Existing Credit Agreement will be
amended and restated in its entirety to read as follows:



ARTICLE I




DEFINITIONS




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



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



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



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



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



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



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



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



1









 





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



     “Aggregate Commitment” shall mean the aggregate of the Revolving Credit Commitments of
all the Lenders, as reduced or increased from time to time pursuant to the terms hereof. The
initial Aggregate Commitment is $50,000,000.



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



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



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



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



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



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



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



     “Applicable Office” shall mean (i) with respect to all matters pertaining to Revolving
Loans made to the Subsidiary Borrower the London office, branch, subsidiary or Affiliate of the
Administrative Agent as the Administrative Agent shall designate, and (ii) for all other purposes
of this Amended Agreement, the Chicago, Illinois office of the Administrative Agent at the address
set forth in Section 9.01 or such other office of the Administrative Agent as the Administrative
Agent shall designate.



 









 





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



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



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



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



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



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



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



     “Bank One Ohio” means Bank One, N.A., a national banking association having its
principal office in Columbus, Ohio.



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



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



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



 









 





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



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



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



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



     “Canadian Subsidiary” shall mean R&M Canada or any Wholly Owned Subsidiary of the
Borrower organized and existing under the laws of Canada or any province thereof.



     “Capital Expenditures” shall mean, for any period, the sum of all expenditures
(whether paid in cash or other consideration or accrued as a liability) which would, in accordance
with GAAP, be included on a consolidated statement of cash flows of the Borrower and its
Consolidated Subsidiaries for such period as additions to property, plant and equipment, Capital
Lease Obligations or similar items; provided, that, the foregoing shall exclude all such
expenditures to the extent made with insurance proceeds or condemnation awards as permitted
pursuant to Section 6.05(e).



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



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



     “Carry Over Amount” shall mean, for any Fiscal Year, an amount equal to the difference
between (i) fifty percent (50%) of the Borrower’s Consolidated Net Income for the preceding Fiscal
Year and (ii) the aggregate amount of all assets used to pay dividends on, or repurchase or redeem,
the Capital Stock of the Borrower during such previous Fiscal Year; provided, that,
in no event shall the Carry Over Amount exceed twenty-five percent (25%) of the Borrower’s
Consolidated Net Income for such previous Fiscal Year.



 









 





     “Cash Equivalents” shall mean:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within 180 days from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 180 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from Standard & Poor’s Rating Service, a division of The McGraw Hill Companies,
Inc. or from Moody’s Investors Service, Inc. respectively;




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




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




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




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



     “Cash Tax Expense” shall mean, for any period for any person, the amount of expense
for Federal, state, local and other income taxes of such person and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP (assuming such person was deemed to be
the common parent of an affiliated group (within the meaning of Section 1504 of the Code) of which
only such person and its subsidiaries were members) plus, the cash tax impact of
intercompany transactions categorized as prepaid tax in accordance with GAAP, for such period, but
excluding deferred income tax expense.



     “Change of Control” means and shall be deemed to have occurred on (a) the date upon
which a transaction or event or any series of transactions or events occurs that is required to be
reported on Schedule 13D pursuant to Section 13(d) of the Exchange Act and the regulations
promulgated thereunder, whereby a person or group, as used for purposes of Section 13(d) of the
Exchange Act (other than M.H.M. & Co., Ltd., an Ohio limited partnership (“M.H.M.”)), has
or will become the Beneficial Owner of 30% or more of the outstanding Voting Shares or the date
upon which the Borrower first learns that a person or group (other than M.H.M.) has or will become
the Beneficial Owner of 30% or more of the outstanding Voting Shares; (b) the date of a change in
the composition of the Board of Directors of the Borrower (the “Board of Directors”) such
that individuals who were members of the Board of Directors on the date two years prior to



 









 







such change (or who were subsequently elected to fill a vacancy in the Board of Directors by
the affirmative vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such two year period) no longer constitute a majority of the Board of
Directors; (c) the date either the Board of Directors or shareholders approve a merger or
consolidation of the Borrower with any other person, other than a merger or consolidation which
would result in the Voting Shares outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Shares of the surviving entity)
at least 80% of the total voting power represented by the Voting Shares of such surviving entity
outstanding immediately after such merger or consolidation; (d) the date either the Board of
Directors or shareholders of the Borrower approve a plan of liquidation of the Borrower or an
agreement for the sale, lease, transfer or other disposition by the Borrower of all or
substantially all the Borrower’s assets, or (e) the date that members of the Murch family,
individually or collectively, no longer are the Beneficial Owners of a majority of the Voting Stock
of M.H.M. For purposes of this definition, “Beneficial Owner” means the person or group has the
power, directly or indirectly, to vote or direct the vote of, and the power to dispose, or direct
the disposition of, Voting Shares or Voting Stock, as the case may be; “Voting Shares” means the
Capital Stock of the Borrower entitled to vote generally in the election of directors of the
Borrower; and “Voting Stock” means the Capital Stock of M.H.M. entitled to vote generally on the
management and affairs of M.H.M.



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



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



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



     “Collateral” shall mean all the collateral pledged or purported to be pledged pursuant
to any of the Collateral Documents, including all real and personal property of the Borrower and
each Domestic Subsidiary, all Intercompany Notes and the Capital Stock of all Restricted
Subsidiaries.



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



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



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



 









 





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



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



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



     “Confidential Information Memorandum” shall mean the confidential information
memorandum of the Borrower dated November, 2005.



     “Consolidated EBIT” shall mean, for any period for any person, Consolidated Net Income
of such person for such period, plus, to the extent deducted in computing Consolidated Net
Income for such period, the sum of (i) Consolidated Interest Expense for such period, (ii) Cash Tax
Expense for such period, (iii) the amount, not to exceed $7,000,000 in the aggregate, of cash
restructuring charges for severance and other costs related to the restructuring of the Romaco and
Reactor Systems business units to the extent such charges were taken prior to August 31, 2005, (iv)
the amount, not to exceed $500,000 in the aggregate, of cash restructuring charges for severance
and other costs related to the sale by Edlon, Inc. of its Lined Pipe and Fittings product line and
its Charleston, West Virginia facility to the extent such charges are taken prior to February 28,
2006, (v) the amount, not to exceed $5,000,000 in the aggregate, of additional cash restructuring
charges and (vi) the amount of all non-cash restructuring and impairment charges, minus, to
the extent added in computing such Consolidated Net Income for such period, the sum of (i) any
interest income and (ii) any non-cash income or non-cash gains during such period that requires
footnote disclosure on financial statements, reports or other filings pursuant to or in accordance
with GAAP or applicable SEC regulations, all as determined on a consolidated basis with respect to
such person and its Consolidated Subsidiaries in accordance with GAAP.



     “Consolidated EBITDA” shall mean, for any period for any person, Consolidated Net
Income of such person for such period, plus, to the extent deducted in computing such
Consolidated Net Income for such period, the sum of (i) Consolidated Interest Expense for such
period, (ii) Cash Tax Expense for such period, (iii) depreciation, depletion, amortization of
intangibles and other non-cash charges or non-cash losses, and (iv) the amount, not to exceed
$7,000,000 in the aggregate, of cash restructuring charges for severance and other costs related to
the restructuring of the Romaco and Reactor Systems business units to the extent such charges were
taken prior to August 31, 2005, (iv) the amount, not to exceed $500,000 in the aggregate, of cash
restructuring charges for severance and other costs related to the sale by Edlon, Inc. of its Lined
Pipe and Fittings product line and its Charleston, West Virginia facility to the extent such
charges are taken prior to February 28, 2006, (v) the amount, not to exceed $5,000,000 in the
aggregate, of additional cash restructuring charges and (vi) the amount of all non-cash
restructuring and impairment charges, minus, to the extent added in computing such
Consolidated Net Income for such period, the sum of (i) any interest income, and (ii) any non-



 









 







cash income or non-cash gains during such period that requires footnote disclosure on
financial statements, reports or other filings pursuant to or in accordance with GAAP or applicable
SEC regulations, all as determined on a consolidated basis with respect to such person and its
Consolidated Subsidiaries in accordance with GAAP.



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



     “Consolidated Interest Expense” shall mean, for any period for any person, the sum
(without duplication) of (a) the gross amount of interest expense, both expensed and capitalized,
of such person and its Consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP, for such period, exclusive of any non-cash interest expense related to



 









 







original issue discount notes and pay-in-kind notes, and (b) all amounts paid (net of any
amounts received) by such person and its Consolidated Subsidiaries pursuant to Interest Rate
Protection Agreements for such period.



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



     “Consolidated Net Income” shall mean, for any period for any person, net income or
loss of such person and its Consolidated Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided, that, there shall be excluded from such
calculation of net income or loss (a) the income of any person in which any other person (other
than such person or any of its subsidiaries or any director holding qualifying shares in accordance
with



 









 







applicable law) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to such person or any of its Wholly Owned Subsidiaries by such other
person during such periods, (b) the income (or loss) of any other person accrued prior to the date
it becomes a subsidiary of such person or is merged into or consolidated with such person or any of
its subsidiaries or the date that such other person’s assets are acquired by such person or any of
its subsidiaries, (c) the income of any subsidiary of such person to the extent that the
declaration or payment of dividends or similar distributions by such subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that subsidiary,
(d) any after-tax gains attributable to sales of assets out of the ordinary course of business, and
(e) (to the extent not included in clauses (a) through (d) above) any non-cash extraordinary gains
(or losses).



     “Consolidated Net Worth” shall mean, as of any date of determination, the total of all
amounts which would in accordance with GAAP be included on a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of such date as stockholder’s equity, less any
amounts attributable to Disqualified Stock; provided, that currency translation
adjustments otherwise permitted or required by GAAP shall be disregarded in the computation of
Consolidated Net Worth.



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



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



     “Convertible Debt” shall mean the Borrower’s 8.0% Convertible Subordinated Notes due
January 31, 2008 originally issued in an aggregate principal amount equal to $40,000,000 pursuant
to the Indenture dated as of February 10, 2003 between the Borrower and U.S. Bank National
Association, as Trustee.



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



     “Determination Date” shall mean:




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




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




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



 









 






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




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




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



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



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



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



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



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



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



 









 





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



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



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



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



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



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



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



     “Existing Credit Agreement” shall mean the Third Amended and Restated Credit Agreement
dated as of October 7, 2003 among the Borrower, the Subsidiary Borrower, the lenders named therein,
Bank One, N.A., as Administrative Agent and as an Issuing Bank, Harris Trust and Savings Bank and
National City Bank, as Co-Syndication Agents, Wachovia Bank, N.A., as Co-Documentation Agent, The
Bank of Nova Scotia, as Co-Documentation Agent and as an Issuing Bank, Fifth Third Bank (Western
Ohio) and Unicredito Italiano S.p.A., New York Branch, as amended and in effect on the date hereof
prior to giving effect hereto.



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



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



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



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



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



 









 





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



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



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



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



     “Foreign Currency” shall mean (a) (i) with respect to the JPMorgan Foreign Currency
Letters of Credit issued to collateralize Indebtedness permitted pursuant to Section 6.01(n),
Canadian dollars, Swiss francs, British pounds sterling and Euros and (ii) with respect to the
Other Foreign Currency Letters of Credit, such currencies (other than dollars) as may be agreed
upon by the Issuing Banks and the Borrower, from time to time, and (b) with respect to Foreign
Currency Revolving Loans, Euros, Swiss francs, British pounds sterling and Canadian dollars.



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



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



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



     “Foreign Currency Letters of Credit” shall mean, collectively, the JPMorgan Foreign
Currency Letters of Credit and Other Foreign Currency Letters of Credit.



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



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



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



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



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



 









 





     “German Subsidiary” shall mean Pfaudler or any other Wholly Owned Subsidiary of the
Borrower organized and existing under the laws of Germany.



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



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



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



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



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



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



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



 









 




Notwithstanding the foregoing, the Indebtedness of any person shall exclude all trade accounts
payable, customer advance payments, and accrued expenses determined in accordance with GAAP and all
of which arise or are incurred in the ordinary course of business.




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



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



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



     “Intercompany Notes” shall mean the promissory notes issued as contemplated by
Sections 6.01(c) and 6.04(b), in the form attached hereto as Exhibit C.



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



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



     “Interest Rate Protection Agreement” shall mean any interest rate swap, foreign
currency exchange agreement, collar, cap or other arrangement requiring payments contingent upon
interest rates.



 









 





     “Issuing Bank” shall mean JPMorgan, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity. The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.



     “Italian Subsidiary” shall mean any Wholly Owned Subsidiary of the Borrower organized
and existing under the laws of Italy.



     “JPMorgan” means JPMorgan Chase Bank, N.A., a national banking association and
successor by merger to Bank One, NA.



     “JPMorgan Foreign Currency Letters of Credit” shall mean, collectively, Letters of
Credit issued pursuant Section 2.23(a)(iii) by JPMorgan (or its predecessor Bank One, NA) for the
sole purpose of collaterizing Indebtedness of any Italian Subsidiary, any German Subsidiary, any UK
Subsidiary, and any Canadian Subsidiary, to the extent such Indebtedness is permitted pursuant to
Section 6.01(n).



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



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



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



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



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



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



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



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



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



 









 





     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for the relevant
Interest Period, the applicable British Bankers’ Association LIBOR rate for deposits in the
applicable currency as reported by any generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, provided that, if no such British Bankers’
Association LIBOR rate is available, the applicable LIBO Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate at which JPMorgan
or one of its Affiliate Banks offers to place deposits in the applicable currency with first-class
banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the approximate amount of JPMorgan’s relevant
LIBOR Loan and having a maturity equal to such Interest Period.



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



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



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



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



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



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



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



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



     “Material Adverse Effect” shall mean (a) a materially adverse effect on the material
existing agreements and relationships, business, financial condition or results of operations of
the



 









 







Borrower and the Subsidiaries, taken as a whole, (b) a material impairment of the ability of
the Borrower or any of the Subsidiaries to perform its material obligations under any Loan Document
to which it is or will be a party or (c) a material impairment of the rights of or benefits
available to the Lenders or the Collateral Agent under any Loan Document. In determining whether
any individual event would result in a Material Adverse Effect, notwithstanding that such event
does not itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other then existing events would result in a Material
Adverse Effect.



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



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



     “Mexican Subsidiary” shall mean Pfaudler S.A. de C.V., a Mexican corporation.



     “Minimum Compliance Level” has the meaning set forth in Section 6.13(c).



     “Mortgages” means, individually and collectively, one or more mortgages, leasehold
mortgages, deeds of trust, or deeds to secure debt, executed and delivered by the Borrower or a
Guarantor or Subsidiary thereof in favor of the Administrative Agent, for the benefit of the
Lenders, in connection with this Amended Agreement that encumber the real property owned or leased
by the Borrower or a Guarantor or Subsidiary thereof and the related improvements thereto, as the
same may be amended, supplemented or otherwise modified from time to time.



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



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



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



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



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



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



 









 





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



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



     “Officer’s Certificate” shall mean, as to any corporation, a certificate executed on
its behalf by the Chairman of the Board of Directors (if an officer) or its President or one of its
Vice Presidents and its Treasurer, or Controller, or one of its Assistant Treasurers or Assistant
Controllers, and, as to any partnership, a certificate executed on behalf of such partnership by
its general partner in a manner which would qualify such certificate as an Officer’s Certificate of
such general partner hereunder.



     “Original Credit Agreement” shall mean the Amended and Restated Credit Agreement dated
as of November 25, 1997 among the Borrower, the lenders named therein, Bank One Ohio, as
Administrative Agent and Issuing Bank, and NationsBank, N.A., as Documentation and Syndication
Agent, as amended, modified or supplemented from time to time.



     “Other Foreign Currency Letters of Credit” shall mean, collectively, Letters of
Credit, issued in a Foreign Currency (other than JPMorgan Foreign Currency Letters of Credit) and
issued pursuant to Section 2.23(a)(ii).



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



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



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



     “Permitted Indebtedness” shall mean Indebtedness permitted pursuant to Section 6.01.



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



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



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



 









 





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



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



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



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



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



     “Qualified Acquisition Subsidiary” shall mean (i) any Domestic Subsidiary, (ii) any
Foreign Subsidiary that is a Restricted Subsidiary as long as the Administrative Agent shall have
received an opinion of counsel in form, content and as to counsel reasonably satisfactory to the
Administrative Agent stating that the Administrative Agent, on behalf of the Lenders, has a valid,
perfected and first priority security interest, pursuant to the Pledge Agreement, in the applicable
percentage of the Capital Stock of that Subsidiary as required by the Pledge Agreement, (iii) R&M
UK as long as the Administrative Agent shall have received an opinion of counsel in form, content
and as to counsel reasonably satisfactory to the Administrative Agent stating that the
Administrative Agent, on behalf of the Lenders, has a valid, perfected and first priority security
interest, pursuant to the Pledge Agreement, in the applicable percentage of the Capital Stock of
the parent or parents of R&M UK (whether directly or indirectly), as required or contemplated by
the Pledge Agreement, and (iv) the Mexican Subsidiary, as long as the Administrative Agent shall
have received an opinion of counsel in form, content and as to counsel reasonably satisfactory to
the Administrative Agent stating that the Administrative Agent, on behalf of the Lenders, has a
valid, perfected and first priority security interest, pursuant to the Pledge Agreement, in the
applicable percentage of the Capital Stock of the parent or parents of the Mexican Subsidiary
(whether directly or indirectly), as required or contemplated by the Pledge Agreement.



     “R&M Canada” shall mean Robbins & Myers Canada Ltd., a corporation organized and
existing under the laws of Canada.



     “R&M UK” shall mean Robbins & Myers U.K. Limited, an English corporation.



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



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



 









 





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



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



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



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



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



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



     “Restricted Subsidiary” shall mean (i) all Domestic Subsidiaries of the Borrower, none
of the Capital Stock of which is owned by Unrestricted Subsidiaries and (ii) all Foreign
Subsidiaries of the Borrower, all of the Capital Stock of which is owned directly by the Borrower
or a Wholly Owned Domestic Subsidiary, or any subsidiary described in clauses (i) or (ii) that is
formed or acquired after the date hereof; provided, that, nothing in this
definition shall be deemed to permit any such formation or acquisition of a subsidiary. Each of
such Domestic and Foreign Subsidiaries existing as of the Effective Date are listed on Schedule
1.01.



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



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



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



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



 









 





     “Revolving Credit Maturity Date” shall mean November 30, 2007 or any later date to
which such date is extended pursuant to Section 2.25.



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



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



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



     “Romaco Notes” shall mean the five year subordinated notes with an outstanding
aggregate principal balance as of August 31, 2005 of eur 18,190,662 due February 28, 2007 issued to
Brian Fenwick-Smith pursuant to the Stock Purchase Agreement dated August 10, 2001 among Robbins &
Myers Holdings, Inc., the Borrower and Brian Fenwick-Smith.



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



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



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



     “Security Agreement” mean the Security Agreement dated as of the date hereof by and
among the Borrower, the Domestic Subsidiaries and the Collateral Agent, as amended from time to
time.



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



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



 









 





     “Shareholder” shall mean, as of any date, any person or “group” (within the meaning of
Rule 13d-3 under the Exchange Act) (a) which beneficially owns as of such date Capital Stock of the
Borrower (or of any person Controlling the Borrower) representing 5% or more of the aggregate
ordinary voting power of all the outstanding Capital Stock of the Borrower (or of such person
Controlling the Borrower) and (b) of which the Borrower has knowledge.



     “Shortfall Amount” shall have the meaning assigned to such term in Section 2.10(e).



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



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



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



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



     “Subordinated Notes” shall mean (i) the Convertible Debt and all documents and
instruments pursuant to which they were issued or related in any way thereto, and (ii) the Romaco
Notes and all documents and instruments pursuant to which they were issued or related in any way
thereto.



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



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



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



 









 





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



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



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



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



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



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



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



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



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



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



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



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



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



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



 









 





     “UK Subsidiary” shall mean R&M UK or any other Wholly Owned Subsidiary of the Borrower
organized and existing under the laws of England.



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



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



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



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



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



     SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Amended Agreement unless the context
shall otherwise require. Unless otherwise expressly provided herein, all terms of an accounting or
financial nature used herein shall be interpreted in accordance with GAAP, as in effect from time
to time; provided, that, for purposes of (a) making any calculation contemplated by
the provisions of Article II and (b) determining compliance with any covenant set forth in Article
VI, such terms shall be construed in accordance with GAAP as in effect on the date of this Amended
Agreement applied on a basis consistent with the application used in preparing the audited
financial statements of the Borrower referred to in Section 3.05.



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



 









 





ARTICLE II




THE CREDITS




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



     SECTION 2.02. Commitment to Make Loans.




     (a) Subject to the terms and conditions and relying upon the representations and
warranties herein set forth, each Lender agrees, severally and not jointly, to make
Revolving Loans to the Borrowers, at any time and from time to time during the Revolving
Credit Availability Period, in an aggregate principal amount at any one time outstanding not
to exceed the excess, if any, of such Lender’s Revolving Credit Commitment set forth
opposite its name on Schedule 2.02(a) (as the same may be reduced or increased from time to
time pursuant to the terms hereof) over its Applicable Percentage of the sum of the Dollar
Amount of outstanding and unpaid Revolving Loans at such time, plus the Dollar
Amount of its Letter of Credit Exposure at such time, plus its Swingline Exposure at
such time; provided, that, (i) the aggregate outstanding principal Dollar
Amount of Foreign Currency Revolving Loans together with the aggregate Dollar Amount of
Letter of Credit Exposure in respect of Foreign Currency Letters of Credit shall not exceed
$25,000,000 at any time, (ii) the aggregate principal Dollar Amount of Letter of Credit
Exposure shall not exceed the limits applicable thereto as set forth in Section 2.23, (iii)
the aggregate outstanding principal amount of Swingline Loans shall not exceed the limits
set forth in Section 2.02(c), (iv) the Aggregate Outstanding Credit Exposure shall not
exceed the Aggregate Commitment and (v) the aggregate outstanding principal Dollar Amount of
Loans made to the Subsidiary Borrower plus the aggregate Letter of Credit Exposure of the
Lenders in respect of Letters of Credit issued for the account of the Subsidiary Borrower
shall not exceed $25,000,000.




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




     (c) Subject to the terms and conditions and relying on the representations and
warranties herein set forth, the Swingline Lender agrees to make loans to the Borrower, from
time to time during the Revolving Credit Availability Period, in an aggregate principal
amount at any one time outstanding not to exceed the lesser of (i) $10,000,000 and (ii) the
excess, if any, of the Aggregate Commitment at such time over the Aggregate Outstanding
Credit Exposure at such time. Each Swingline Loan shall be in a principal amount that is an
integral multiple of $100,000.



 









 





     SECTION 2.03. Loans.




     (a) Each Loan (other than Swingline Loans) shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their respective
Revolving Credit Commitments based on their Applicable Percentage; provided,
that, the failure of any Lender to make any Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Subject to the terms and conditions contained herein, funds
advanced by the Lenders pursuant to any Revolving Loan may be in U.S. dollars (a “U.S.
Dollar Revolving Loan”) or a Foreign Currency (a “Foreign Currency Revolving
Loan”). The Loans comprising any Borrowing made in U.S. Dollars (other than a Borrowing
comprised of Swingline Loans) shall be in an aggregate principal amount which is (i) an
integral multiple of $100,000 and not less than $500,000 in the case of LIBOR Loans and (ii)
an integral multiple of $100,000 in the case of ABR Loans. Each Borrowing consisting of
Foreign Currency Revolving Loans shall be in a minimum aggregate principal Dollar Amount
equal to the applicable Foreign Currency Equivalent of approximately $1,000,000 and integral
multiples of the applicable Foreign Currency Equivalent of approximately $500,000 in excess
thereof. At no time shall the aggregate outstanding principal Dollar Amount of Foreign
Currency Revolving Loans and Foreign Currency Letters of Credit exceed $25,000,000.




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




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



 









 






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




     (ii) Subject to Section 2.03(h), each Lender shall make each Foreign Currency
Revolving Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to the Administrative Agent by 1:00 p.m.,
Applicable Time, in the place where such deposit is required to be made pursuant to
Section 2.19, for payments by the Borrowers, of same day funds in the applicable
Foreign Currency. Such deposit will be made to such accounts in the primary market
for such Foreign Currencies as the Administrative Agent shall specify from time to
time by notice to the Lenders. To the extent funds are received from the Lenders,
the Administrative Agent shall promptly make such funds available by wire transfer
to such accounts as the Borrower shall have specified to the Administrative Agent.
If Foreign Currency Revolving Loans shall not occur on such date because any
condition precedent herein specified shall not have been met, the Administrative
Agent shall return the amounts received from Lenders in accordance with this
paragraph to the respective Lenders.




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




     (f) Unless the Administrative Agent shall have received notice from a Lender prior to
the date of any Borrowing, or prior to the time of any required payment by any Lender in
respect of a Letter of Credit Disbursement, that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing or



 









 






payment, the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing or payment in accordance
with Section 2.03(a), and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrowers or the Issuing Bank, as the case may be, on such date a
corresponding amount. If and to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrowers severally agree
to repay to the Administrative Agent forthwith on demand such corresponding amount (or in
the case of any Foreign Currency Revolving Loan, the Dollar Equivalent thereof) together
with interest thereon, for each day from the date such amount is made available to the
Borrowers or the Issuing Bank (or, if the Administrative Agent and the Issuing Bank are the
same person, from the date of such payment in respect of a Letter of Credit Disbursement),
as applicable, until the date such amount is repaid to the Administrative Agent at, (i) in
the case of the Borrowers, the interest rate applicable thereto pursuant to Section 2.07 or
2.23(g), as applicable, and (ii) in the case of such Lender, the Federal Funds Effective
Rate. If such Lender shall repay to the Administrative Agent such corresponding amount in
respect of a Borrowing, such amount shall constitute such Lender’s Loan as part of such
Borrowing for purposes of this Amended Agreement.




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




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



     SECTION 2.04. Notice of Borrowings.




     (a) U.S. Dollar Borrowings. In order to request a Borrowing (other than a
Swingline Loan) consisting of U.S. Dollar Revolving Loans, a Borrower shall give the
Administrative Agent written or telecopy notice (or telephone notice promptly confirmed in
writing or by telecopy) at the Applicable Office (a) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, Applicable Time, three Business Days before a proposed Borrowing
and (b) in the case of an ABR Borrowing, not later than 12:00 noon, Applicable Time, on the
Business Day of a proposed Borrowing. Any such notice of Borrowing shall be irrevocable,
shall be substantially in the form of Exhibit H-1 hereto



 









 






and shall in each case refer to this Amended Agreement and specify (i) whether the
Borrowing then being requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect thereto.
If no election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then such Borrower shall be deemed to
have selected an Interest Period of one month’s duration. If such Borrower shall not have
given notice in accordance with this Section 2.04(a) of its election to refinance a
Revolving Credit Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then such Borrower shall (unless such Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to refinance such Borrowing
with an ABR Borrowing. The Administrative Agent shall promptly, but no later than 2:00
p.m., Applicable Time, on the day it receives a notice hereunder from a Borrower, advise the
applicable Lenders of any notice given pursuant to this Section 2.04(a) and of each Lender’s
portion of the requested Borrowing.




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



     SECTION 2.05. Noteless Agreement; Repayment of Loans.




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




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



 









 






by the Administrative Agent hereunder from the Borrowers and each Lender’s share
thereof.




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




     (d) Any Lender may request that its Loans be evidenced by a Revolving Credit Note. In
such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable
to the order of such Lender in the form of Exhibit A-1 hereto. Thereafter, the Loans
evidenced by such Revolving Credit Note and interest thereon shall at all times (including
after any assignment pursuant to Section 9.04) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section 9.04, except to
the extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described in paragraphs
(a) and (b) above.




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




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




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



 









 





     SECTION 2.06. Fees.




     (a) The Borrower shall pay to the Administrative Agent for the account of each Lender,
on the last day of March, June, September and December in each year and on the date on which
the Revolving Credit Commitment of such Lender shall expire or be terminated as provided
herein, a facility fee (a “Facility Fee”) at a per annum rate equal to the
Applicable Facility Fee Rate on the total Revolving Credit Commitment (as the same may be
reduced from time to time pursuant to Section 2.10) of such Lender during the preceding
quarter (or shorter period commencing with the Effective Date or ending with the date on
which the Revolving Credit Commitment of such Lender shall be terminated). All Facility
Fees shall be computed on the basis of the actual number of days elapsed in a year of 360
days. The Facility Fees due to each Lender shall commence to accrue on the Effective Date
and cease to accrue on the date on which the Revolving Credit Commitment of such Lender
shall be terminated as provided herein.




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




     (c) The Borrower agrees to pay to the Administrative Agent, for its own account, the
fees set forth in the Fee Letter dated November 11, 2005 among the Arranger, the
Administrative Agent and the Borrower and in the applicable provisions of the Commitment
Letter dated such date among such parties (together, the “Fee Letter”) in the
amounts and on the dates provided in the Fee Letter. Such fees shall be in addition to
reimbursement of the Administrative Agent’s reasonable out-of-pocket expenses.




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



 









 





     SECTION 2.07. Interest on Loans.




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




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




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



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



     SECTION 2.09. Alternate Rate of Interest. In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have reasonably determined that deposits in the principal
amounts in the relevant currency of the Loans comprising such Borrowing are not generally available
in the applicable interbank market, or that the rates at which such deposits are being offered will
not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans
during such Interest Period, or that reasonable means do not exist for ascertaining the Adjusted
LIBO Rate, the Administrative Agent shall, as soon as practicable



 









 






thereafter, give written or telecopy notice of such determination to the Borrower and the
Lenders. In the event of any such determination, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.04 or 2.11 shall, until the Administrative Agent shall have advised
the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.



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




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




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




     (c) [Reserved].




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




     (e) To the extent that the Aggregate Commitment on the Effective Date is less than
$50,000,000 (the amount of any such shortfall being the “Shortfall Amount”), the
Borrower may, at its option, on up to two occasions, seek to increase the Aggregate
Commitment by up to the Shortfall Amount (resulting in a maximum Aggregate Commitment of
$50,000,000) upon at least three (3) Business Days’ prior written notice to the
Administrative Agent, which notice shall specify the amount of any such increase, shall be
delivered at a time when no Default or Event of Default has occurred and is continuing and
may not be delivered if the Borrower has previously terminated a portion of the Revolving
Credit Commitment pursuant to Section 2.10(b) hereof. The Borrower may, after giving such
notice, offer the increase (which may be declined by any Lender in its sole discretion) in
the Aggregate Commitment on either a ratable basis to the Lenders or on a non pro-rata basis
to one or more Lenders and/or to other lenders or entities reasonably acceptable to the
Administrative Agent. No increase in the Aggregate



 









 






Commitment shall become effective until the existing or new Lenders extending
incremental Revolving Credit Commitment amounts and the Borrower shall have delivered to the
Administrative Agent a document in form reasonably satisfactory to the Administrative Agent
pursuant to which any such existing Lender states the amount of its Revolving Credit
Commitment increase, any such new Lender states its Revolving Credit Commitment amount and
agrees to assume and accept the obligations and rights of a Lender hereunder and the
Borrower accepts such incremental Revolving Credit Commitments. The Lenders (new or
existing) shall accept an assignment from the existing Lenders, and the existing Lenders
shall make an assignment to the new or existing Lender accepting a new or increased
Revolving Credit Commitment, of an interest in the then outstanding extensions of credit
hereunder such that, after giving effect thereto, all credit exposure hereunder (other than
Swingline Loans as to which no participation notice pursuant to Section 2.22(c) has been
delivered) is held (directly or indirectly) ratably by the Lenders in proportion to their
respective Revolving Credit Commitments. Assignments pursuant to the preceding sentence
shall be made in exchange for the principal amount assigned plus accrued and unpaid interest
and Facility Fees and Letter of Credit Fees. The Borrower shall make any payments under
Section 2.16 resulting from such assignments. Any such increase of the Aggregate Commitment
shall be subject to receipt by the Administrative Agent from the Borrower of such
supplemental opinions, resolutions, certificates and other documents as the Administrative
Agent may reasonably request.



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




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




     (ii) the aggregate principal amount of such Borrowing converted into or
continued as (A) a Eurodollar Borrowing in dollars, shall be an integral multiple of
$100,000 and not less than $500,000, (B) a Eurodollar Borrowing in a Foreign
Currency shall be an integral multiple of the applicable Foreign Currency



 









 






Equivalent of approximately $500,000 and not less than the applicable Foreign
Currency Equivalent of approximately $1,000,000, or (C) an, ABR Borrowing, shall be
the lesser of (I) the remaining outstanding principal amount of such Borrowing and
(II) an integral multiple of $100,000;




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




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




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




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




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




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




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



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



 









 







Period (and shall not otherwise have given notice in accordance with this Section 2.11 to
convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued into a new Interest Period
as an ABR Borrowing, unless such Borrowing is a Foreign Currency Borrowing, in which case such
Borrowing shall be automatically continued as a Foreign Currency Borrowing in the same Foreign
Currency for an Interest Period of one month.



     SECTION 2.12. Mandatory Repayments and Prepayments.




     (a) On the Revolving Credit Maturity Date, all Revolving Credit Borrowings and all
Swingline Borrowings shall be due and payable to the extent not previously paid and all
Letter of Credit Exposure (if any) shall be terminated or cash collateralized in a manner
satisfactory to the Administrative Agent.




     (b) [Reserved].




     (c) In the event and on each occasion that the sum of (i) the aggregate outstanding
principal Dollar Amount of Revolving Loans, (ii) the aggregate Dollar Amount of all Letter
of Credit Exposure, and (iii) the aggregate Swingline Exposure (collectively, the
“Revolving Loan Exposure”) exceeds the Aggregate Commitment (or $25,000,000 with
respect to all Loans made to, and Letter of Credit Exposure of, the Subsidiary Borrower) at
such time, the Borrowers shall immediately prepay Revolving Loans such that the aggregate
Dollar Amount of all Revolving Loan Exposure is equal to or less than the Aggregate
Commitment (or $25,000,000 with respect to all Loans made to, and Letter of Credit Exposure
of, the Subsidiary Borrower). In addition, on the last day of each calendar month, or on
any other Determination Date, the Borrowers shall pay or prepay outstanding Foreign Currency
Revolving Loans to the extent, if necessary, so that (i) the Dollar Amount (determined as of
such date) of all aggregate Revolving Loan Exposure is equal to or less than the Aggregate
Commitment (or $25,000,000 with respect to all Loans made to, and Letter of Credit Exposure
of, the Subsidiary Borrower) at that time and (ii) the Dollar Amount of the aggregate
outstanding principal amount of such Foreign Currency Revolving Loans together with the
Dollar Amount of the outstanding Letter of Credit Exposure in respect of Foreign Currency
Letters of Credit shall not exceed $25,000,000 (including with respect to all Loans made to,
and Letter of Credit Exposure of, the Subsidiary Borrower). In addition, in the event that
on the last day of any calendar month or on any other Determination Date, the Dollar Amount
of the Foreign Currency Letter of Credit Exposure resulting from the JPMorgan Foreign
Currency Letters of Credit exceeds $25,000,000, then the Borrower shall cash collateralize
Foreign Currency Letter of Credit Exposure resulting from the JPMorgan Foreign Currency
Letters of Credit (in each instance, in dollars or in a Foreign Currency reasonably required
by the Issuing Bank) to the extent, if necessary, so that (i) the Dollar Amount (determined
as of such date) of all aggregate Revolving Loan Exposure is equal to or less than the
Aggregate Commitment at that time and (ii) the Dollar Amount (determined as of such date) of
all Foreign Currency Letter of Credit Exposure resulting from the JPMorgan Foreign Currency
Letters of Credit is equal to or less than $25,000,000 (and thereupon such cash shall be
deemed to reduce the Letter of Credit Exposure for purposes of this Section 2.12(c)). In
the event that on the last day of any



 









 






calendar month or on any other Determination Date, the Dollar Amount of the aggregate
Letter of Credit Exposure resulting from Letters of Credit issued in dollars and Other
Foreign Currency Letters of Credit, exceeds the Aggregate Commitment (or $25,000,000 with
respect to all Loans made to, and Letter of Credit Exposure of, the Subsidiary Borrower),
then the Borrower shall cash collateralize such Letter of Credit Exposure (in each instance,
in dollars or in a Foreign Currency reasonably required by the Administrative Agent) to the
extent, if necessary, so that (i) the Dollar Amount (determined as of such date) of all
aggregate Revolving Loan Exposure is equal to or less than the Aggregate Commitment (or
$25,000,000 with respect to all Loans made to, and Letter of Credit Exposure of, the
Subsidiary Borrower) at that time and (ii) the Dollar Amount (determined as of such date) of
all aggregate Letter of Credit Exposure resulting from Letters of Credit issued in dollars
and Other Foreign Currency Letters of Credit is equal to or less than the Aggregate
Commitment (or $25,000,000 with respect to all Loans made to, and Letter of Credit Exposure
of, the Subsidiary Borrower) (and thereupon such cash shall be deemed to reduce the Letter
of Credit Exposure for purposes of this Section 2.12(c)).




     (d) All mandatory prepayments under Section 2.12(c) shall be applied (to the extent
applicable) (i) first, to reduce the outstanding principal amount of U.S. Dollar
Revolving Loans or Foreign Currency Revolving Loans, as the case may be, and (ii)
second, to the extent that the remaining amount of such prepayment is greater than
the aggregate principal Dollar Amount of outstanding Loans, to provide cash collateral in an
amount equal to all such Letter of Credit Exposure (the amount to be deposited shall be
denominated in the currency or currencies of the Letter(s) of Credit then outstanding) (and
thereupon such cash shall be deemed to reduce the Letter of Credit Exposure for purposes of
this Section 2.12(d)). Subject to the foregoing provisions, any mandatory prepayment of
Loans of any Class pursuant to Section 2.12(c) shall be applied to prepay all ABR Loans of
such Class before any LIBOR Loans of such Class are prepaid. All mandatory prepayments
shall be applied first to Loans in the currency in which payment is made by the Borrowers.




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



     SECTION 2.13. Optional Prepayments.




     (a) Subject to Section 2.13(b), the Borrowers shall have the right at any time and from
time to time to prepay any LIBOR Loans, in whole or in part, upon giving prior written or
telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to
the Administrative Agent, at least three Business Days prior to the date of prepayment;
provided, that each partial prepayment of LIBOR Loans shall be in a Dollar
Amount which is an integral multiple of $500,000 and not less than $1,000,000 and a partial
prepayment of a Eurodollar Borrowing under this Section 2.13(a) shall not be made that would
result in the remaining aggregate outstanding principal Dollar Amount



 









 






thereof being less than $500,000. Each notice of prepayment shall specify the
prepayment date, the Class, the Type, the Interest Period of the Borrowing to be prepaid and
the principal amount thereof to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Borrowing by the amount stated therein on the date stated therein.




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



     SECTION 2.14. Reserve Requirements; Change in Circumstances.




     (a) Notwithstanding any other provision of this Amended Agreement, if after the date of
this Amended Agreement any change in applicable law or regulation or in the interpretation
or administration thereof by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) shall change the basis of
taxation of payments to any Lender or the Issuing Bank of the principal of or interest on
any LIBOR Loan made by such Lender or any Fees or other amounts payable hereunder (other
than changes in respect of taxes imposed on the overall net income of such Lender or the
Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal
office or by any state of the United States or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement that is
reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or
the applicable interbank market any other condition affecting this Amended Agreement or
LIBOR Loans made by such Lender or any Letter of Credit or participation therein, and the
result of any of the foregoing shall be to increase the cost to such Lender or the Issuing
Bank of making or maintaining any LIBOR Loan or increase the cost to any Lender of issuing
or maintaining any Letter of Credit or purchasing or maintaining a participation therein or
to reduce the amount of any sum received or receivable by such Lender (or Affiliate or
parent thereof which fairly allocates any such increase to the Lender) or the Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender
or the Issuing Bank to be material, then the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs actually
incurred or reduction suffered.




     (b) If any Lender or the Issuing Bank shall have determined that the adoption after the
date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy,
or any change after the date hereof in any such law, rule, regulation, agreement or
guideline or in the interpretation or administration thereof by any Governmental Authority
(including the National Association of Insurance Commissioners) charged with the
interpretation or administration thereof, or compliance by any Lender (or any lending office
of such Lender) or the Issuing Bank or any Lender’s or the Issuing Bank’s holding



 









 






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




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




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



     SECTION 2.15. Change in Legality.




     (a) Notwithstanding any other provision of this Amended Agreement, if after the date
hereof, (i) any change in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof shall make
it unlawful for any Lender to make or maintain any LIBOR Loan or to give effect to its
obligations as contemplated hereby with respect to any LIBOR Loan, or (ii) there shall have
occurred any change in national or international financial, political or economic
conditions, other than those arising under Section 2.24, (including the imposition of or any
change in exchange controls) or currency exchange rates which would make it impracticable
for any Lender to make Loans denominated in any Foreign



 









 






Currency to the Borrowers, as contemplated by this Amended Agreement, then, by written
notice to the Borrower and to the Administrative Agent, such Lender may:




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




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


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





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



     SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss or
expense that such Lender may sustain or incur as a consequence of (a) any event, other than a
default by the Administrative Agent or such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any amount on account of the
principal of any LIBOR Loan prior to the end of the Interest Period in effect therefor, (ii) the
conversion of any LIBOR Loan to a Loan of another Type, or the conversion of the Interest Period
with respect to any LIBOR Loan, in each case other than on the last day of the Interest Period in
effect therefor, (iii) any LIBOR Loan to be made by such Lender (including any LIBOR Loan to be
made pursuant to a conversion or continuation under Section 2.11) not



 









 







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



     SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15 and as
provided in this Section 2.17 with respect to Swingline Loans, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of
the Facility Fees, each reduction of the Revolving Credit Commitments and each refinancing of any
Borrowing with, conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing of
any Type shall be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the sum of (a) the respective principal amounts of their applicable outstanding
Loans and (b) the respective amounts of their Letter of Credit Exposure). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any time, each outstanding
Swingline Loan shall be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including, those Lenders which shall not have made Swingline Loans) pro rata in accordance with
such respective Revolving Credit Commitments. Each Lender agrees that in computing such Lender’s
portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.



     SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker’s lien, setoff or counterclaim against the Borrowers, or pursuant to
a secured claim under Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the unpaid
principal portion of its Loans of any Class shall be proportionately less than the unpaid principal
portion of the Loans of such Class of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans of such other Lender, so that the aggregate
unpaid principal amount of the Loans and participations in Loans of any Class held by each Lender
shall be in the same proportion to the aggregate unpaid principal



 









 







amount of all Loans of such Class then outstanding as the principal amount of its Loans of
such Class prior to such exercise of banker’s lien, setoff or counterclaim or other event was to
the principal amount of all Loans of such Class outstanding prior to such exercise of banker’s
lien, setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored
without interest. For purposes of this Section 2.18, the Revolving Loans of any Lender shall
include such Lender’s Letter of Credit Exposure. Each of the Borrowers expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a Loan deemed to have
been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrowers to such Lender by reason thereof as fully as
if such Lender had made a Loan directly to the Borrowers in the amount of such interest.



     SECTION 2.19. Payments.




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




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




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



 









 






short of the full amount of such currency payable hereunder, and shall not be affected
by judgment being obtained for such amount.


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




     SECTION 2.20. Taxes.




     (a) Any and all payments by or on behalf of the Borrower or any Subsidiary hereunder
and under any other Loan Document shall be made, in accordance with Section 2.19, free and
clear of and without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) income taxes or branch profit taxes imposed on the net income of the
Administrative Agent, any Lender or the Issuing Bank (or any transferee or assignee thereof,
including a participation holder (any such entity a “Transferee”)) and (ii)
franchise taxes imposed on the net income of the Administrative Agent, any Lender or the
Issuing Bank (or Transferee), in each case by the jurisdiction under the laws of which the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) is organized or any
political subdivision thereof or the jurisdiction in which such Lender or Transferee has its
applicable lending office (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities, collectively or individually, being called “Taxes” and
all such excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities
being called “Excluded Taxes”). Subject to the provisions of Section 2.20(f) if the
Borrower or any Subsidiary shall be required to deduct any Taxes from or in respect of any
sum payable hereunder or under any other Loan Document to any Lender or the Issuing Bank (or
any Transferee) or the Administrative Agent, (A) the sum payable shall be increased by the
amount (an “additional amount”) necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section
2.20 but excluding Excluded Taxes) such Lender or the Issuing Bank (or Transferee) or the
Administrative Agent, as the case may be, shall receive an amount equal to the sum it would
have received had no such deductions been made, (B) the Borrower or such Subsidiary shall
make such deductions and (C) the Borrower or such Subsidiary shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.




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



 









 






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




     Administrative Agent, any Lender or the Issuing Bank (or Transferee), as the case may be,
makes written demand therefor and provides the Borrower with the certificate described
above.




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




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



 









 






     (f) Each Lender (or Transferee) that is organized under the laws of a jurisdiction
other than the United States, any State thereof or the District of Columbia (a “Non-U.S.
Lender”) shall deliver to the Borrower and the Administrative Agent two copies of (i)
either United States Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of
a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Amended
Agreement and the other Loan Documents and (ii) an Internal Revenue Service Form W-8 or W-9
entitling such Non-U.S. Lender to receive a complete exemption from United States backup
withholding tax. Such forms shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Amended Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes a Transferee
hereunder) and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office,(a “New Lending Office”).
In addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. If a Non-U.S. Lender
who has delivered the forms referred to above on the date it becomes a party to this Amended
Agreement (or, in the case of a Transferee, on the date that it becomes a Transferee
hereunder) determines that it is unable subsequently to submit to the Borrower any such
form, or that it is required to withdraw or cancel any such form, such Non-U.S. Lender shall
promptly notify the Borrower of such fact. Notwithstanding any other provision of this
Section 2.20(g), a Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.20(g) that such Non-U.S. Lender is not legally able to deliver.




     (g) The Borrowers shall not be required to indemnify any Non-U.S. Lender, or to pay any
additional amounts to any Non-U.S. Lender, in respect of United States Federal withholding
tax pursuant to paragraph (a) or (c) above to the extent that (i) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S. Lender to comply
with Section 2.20(f) or (ii) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender become a party to
this Amended Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder) or, with respect to
payments to a New Lending Office, the date such Non-U.S. Lender designated such New Lending
Office with respect to a Loan; provided, however, that this clause (ii)
shall not apply (A) to any Transferee or New Lending Office that becomes a Transferee or New
Lending Office as a result of an assignment, participation, transfer or designation made at
the request of the Borrower and (B) to the extent the indemnity payment or additional
amounts any Transferee, or any Lender (or Transferee) acting through a New Lending Office,
would be entitled to receive



 









 






(without regard to this clause (ii)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer to such Transferee,
or Lender (or Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer or
designation or (ii) the obligation to pay such additional amounts would not have arisen but
for a failure by such Non-U.S. Lender to comply with the provisions of paragraph (f) above.




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




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



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




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



 









 






certificate under Section 2.14 or 2.15 or demand for additional amounts under Section
2.20, as the case may be, shall cease to exist or become inapplicable for any reason or if
such Lender shall waive its rights in respect of such circumstances or event under Section
2.14, 2.15, 2.16 or 2.20, as the case may be, then such Lender shall not thereafter be
required to make any such assignment hereunder.




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



     SECTION 2.22. Swingline Loans.




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




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




     (c) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 1:00 p.m., Eastern Standard Time, on any Business Day
require the Lenders to acquire participations on such Business Day in all or a portion



 









 






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



     SECTION 2.23. Letters of Credit.




     (a) The Borrower may request the issuance of (i) Letters of Credit in dollars, in form
and substance reasonably acceptable to the Administrative Agent and the Issuing Bank, for
the account of the Borrowers, at any time and from time to time during the Letter of Credit
Availability Period; provided, that, any such Letter of Credit shall be
issued only if, and each request by the Borrower for the issuance of any Letter of Credit
shall be deemed a representation and warranty of the Borrowers that, immediately following
the issuance of such Letter of Credit, (A) the aggregate Dollar Amount of Letter of Credit
Exposure resulting from Letters of Credit does not exceed the Aggregate Commitment, and (B)
the Aggregate Outstanding Credit Exposure does not exceed the Aggregate Commitment at such
time, (ii) Other Foreign Currency Letters of Credit, in form and substance reasonably
acceptable to the Administrative Agent and the Issuing Bank for the account of the
Borrowers, at any time and from time to time during the Letter of Credit Availability
Period; provided, that, any such Other Foreign Currency



 









 






Letter of Credit shall be issued only if, and each request by the Borrower for the
issuance of any such Other Foreign Currency Letter of Credit shall be deemed a
representation and warranty of the Borrowers that, immediately following the issuance of
such Other Foreign Currency Letter of Credit (A) the aggregate Dollar Amount of aggregate
Letter of Credit Exposure resulting from Letters of Credit does not exceed the Aggregate
Commitment and (B) the Aggregate Outstanding Credit Exposure does not exceed the Aggregate
Commitment at such time, and (iii) JPMorgan Foreign Currency Letters of Credit, in form and
substance reasonably acceptable to the Administrative Agent and JPMorgan, for the account of
the Borrowers, at any time and from time to time during the Letter of Credit Availability
Period; provided, that, any such JPMorgan Foreign Currency Letter of Credit
shall be issued only if, and each request by the Borrower for the issuance of any such
JPMorgan Foreign Currency Letter of Credit shall be deemed a representation and warranty of
the Borrowers that, immediately following the issuance of such JPMorgan Foreign Currency
Letter of Credit, (A) the aggregate Dollar Amount of Foreign Currency Letter of Credit
Exposure resulting from the JPMorgan Foreign Currency Letters of Credit does not exceed
$25,000,000 and (B) the Aggregate Outstanding Credit Exposure does not exceed the aggregate
amount of the Aggregate Commitment at such time. In no event shall an Issuing Bank be
obligated to issue any Letter of Credit if after giving effect thereto, the Aggregate
Outstanding Credit Exposure would exceed the Aggregate Commitment. For purposes hereof,
the “issuance” of a Letter of Credit includes the amendment, renewal or extension of a
Letter of Credit.




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




     (c) Each issuance of any Letter of Credit shall be made on at least two Business Days’
prior irrevocable written or telecopy notice (such notice to be delivered by 12:00 noon,
Eastern Standard Time) from the Borrower (or such shorter notice as shall be acceptable to
the Issuing Bank) to the Administrative Agent at its address set forth in Section 9.01 and
the Issuing Bank specifying whether such Letter of Credit is a Standby LC or a Commercial
LC, the date of issuance, the date on which such Letter of Credit is to expire, the amount
of such Letter of Credit, whether such Letter of Credit is to be issued in dollars or a
Foreign Currency (and if such Letter of Credit is to be issued in a Foreign Currency, the
applicable Foreign Currency and whether such Letter of Credit is to be an Other Foreign
Currency Letter of Credit or a JPMorgan Foreign Currency Letter of Credit), the name and
address of the beneficiary of such Letter of Credit, and such other information as may be
necessary or desirable to complete such Letter of Credit; provided, that,
with respect to JPMorgan Foreign Currency Letters of Credit any such Letter of Credit issued
in the same Foreign Currency shall be issued in amounts that shall not be less than the
approximate Dollar Equivalent of US $2,000,000 or multiples thereof (or such other amounts
as agreed to by JPMorgan in its sole discretion). The Issuing Bank will give the
Administrative Agent prompt notice of the issuance and amount of such Letter of Credit and
the expiration date of such Letter of Credit (and the Administrative Agent shall give prompt
notice thereof to each Lender). During the Letter of Credit Availability Period, the
Issuing Bank also will give the Administrative Agent (i)



 









 






if and when requested, notice of the amount available to be drawn under each
outstanding Letter of Credit and (ii) prompt notice of any payment or disbursement that has
been or will be made under any Letter of Credit. Each Letter of Credit (other than Foreign
Currency Letters of Credit) issued hereunder will be subject to the Uniform Customs and
Practices for Documentary Credits, as in effect from time to time. Each Foreign Currency
Letter of Credit issued hereunder shall be subject to and incorporate the Uniform Customs
and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce
Publication No. 500 (the “UCP”) (other than Articles 41 and 43 thereof with respect
to standby Letters of Credit); to the extent not inconsistent with the UCP, Article 5 of the
Uniform Commercial Code as adopted in New York (“Article 5”); and Section
5-102(a)(10) of the 1995 Official Text with comments of the Uniform Commercial Code Revised
Article 5, as promulgated by the American Law Institute and National Conference of
Commissioners on Uniform State Laws (“Revised Article 5”), which section of Revised
Article 5 shall govern and control over any inconsistent provision of the UCP or Article 5.




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




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




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




     (g) The applicable Borrower hereby agrees to reimburse the Issuing Bank for any payment
or disbursement made by the Issuing Bank under any Letter of Credit (including any Letter of
Credit issued for the account of a Subsidiary), by making payment in immediately available
funds, to the Administrative Agent on the same



 









 






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




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




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




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




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




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




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



 









 






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




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




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




     (k) In the event that the Borrowers are required or elect pursuant to the terms of this
Amended Agreement, including, but not limited to, Section 2.12(c) (other than Article VII)
or any other Loan Document, to provide cash collateral in respect of the Letter of Credit
Exposure, the Borrowers shall deposit in an account with the Administrative Agent, for the
benefit of each Lender, an amount in cash equal to the amount of such Letter of Credit
Exposure (or such lesser amount as shall be required hereunder or thereunder); the amount to
be deposited shall be denominated in the



 









 






currency or currencies of the Letter(s) of Credit outstanding as determined by the
Issuing Bank. Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Obligations to Lenders. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in Cash
Equivalents, which investments shall be made as directed by the Borrower (subject, however,
to the preservation of such deposits in the currency in which deposited and unless such
investments shall be contrary to applicable law or regulation or a Default or Event of
Default shall have occurred and be continuing, in which case the Administrative Agent shall
determine in its discretion whether to make investments and, if so, shall determine in its
discretion the Cash Equivalents to be selected), such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account.
Borrowers hereby pledge all such deposits and accounts and cash collateral, together with
the proceeds, investments, and increases thereof and the interest thereon, to the
Administrative Agent for the benefit of the Issuing Banks and the other Lenders to secure
payment and performance of the Obligations. Moneys in such account shall automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for Letter of Credit
Disbursements and, if the maturity of the Loans has been accelerated, to satisfy the
Obligations to the Lenders. If the Borrowers are required to provide an amount of cash
collateral hereunder pursuant to Section 2.12(c), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrowers upon demand; provided, that,
after giving effect to such return, (i) the sum of the Dollar Amount of the aggregate Letter
of Credit Exposure, plus the aggregate outstanding Swingline Exposure, plus the aggregate
outstanding Dollar Amount of Revolving Loans would not exceed the aggregate Revolving Credit
Commitments, (ii) the Dollar Amount of Letters of Credit does not exceed the Aggregate
Commitment, (iii) the Dollar Amount of the JPMorgan Foreign Currency Letters of Credit does
not exceed $25,000,000 and (iv) no Default or Event of Default shall have occurred and be
continuing. In the event that the Borrowers are required pursuant to the terms of Article
VII of this Amended Agreement to provide cash collateral in respect of Letter of Credit
Exposure, the Borrowers shall deposit such cash collateral in an account with the Collateral
Agent pursuant to the Collateral Agency Agreement. Such deposit shall be held by the
Collateral Agent in accordance with the Collateral Agency Agreement. Any such deposit to be
held by the Administrative Agent or the Collateral Agent, as provided herein, shall be
accompanied by notice from the Borrower, in form satisfactory to the Administrative Agent or
the Collateral Agent, as the case may be, setting forth the basis for such deposit,
identifying in reasonable detail the Letters of Credit to which such deposit relates, and
setting forth any other information related to such deposit reasonably requested by the
Administrative Agent or the Collateral Agent, as the case may be. The Borrowers shall
promptly provide the Administrative Agent with a copy of any such notice to the Collateral
Agent and shall promptly provide the Collateral Agent with a copy of any such notice to the
Administrative Agent. If the Borrowers are required to provide an amount of cash collateral
hereunder as a result of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrowers within three Business Days after all Events of
Default have been cured or waived.



 









 





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



     SECTION 2.25. Extension of Revolving Credit Maturity Date. The Borrower may request a
one-year extension of the Revolving Credit Maturity Date by submitting a request for an extension
to the Administrative Agent (an “Extension Request”) no more than 180 and no less than 90
days prior to the Revolving Credit Maturity Date. Promptly upon receipt of an Extension Request,
the Administrative Agent shall notify each Lender thereof and shall request each Lender to act upon
the Extension Request. Each Lender approving the Extension Request shall deliver its written
consent no later than 45 days prior to the Revolving Credit Maturity Date. If and only if the
consent of each of the Lenders is received by the Administrative Agent prior to the Revolving
Credit Maturity Date, the Revolving Credit Maturity Date shall be extended by one year and the
Administrative Agent shall promptly notify the Borrower and each Lender of the new Revolving Credit
Maturity Date.



ARTICLE III




REPRESENTATIONS AND WARRANTIES




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



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



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



 









 







or other indenture, agreement or instrument or (iii) except for the Liens of the Collateral
Documents, result in the creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of the Subsidiaries.



     SECTION 3.03. Enforceability. This Amended Agreement has been duly executed and
delivered by the Borrowers and constitutes, and each other Loan Document when executed and
delivered by the Borrower or any of the Subsidiaries will constitute, a legal, valid and binding
obligation of such party enforceable against such party in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance, voidable preference or similar laws and the application of equitable principles
generally.



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



     SECTION 3.05. Financial Statements, Undisclosed Liabilities.




     (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income and cash flows as of and for the 2005 Fiscal Year, audited by and
accompanied by the unqualified opinion of Ernst & Young LLP, independent public accountants.
Such financial statements present fairly the financial condition and results of operations
and cash flows of the Borrower and its Consolidated Subsidiaries as of such dates and for
such periods. Such balance sheet and the notes thereto disclose all material liabilities,
direct, contingent or otherwise, of the Borrower and its Consolidated Subsidiaries as of the
dates thereof for which disclosure is required in accordance with GAAP. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis, except as
otherwise noted therein.




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



     SECTION 3.06. No Material Adverse Change. Since August 31, 2005, and as of the
Effective Date, there has not been any Material Adverse Change in the business of the Borrower.



     SECTION 3.07. Title to Properties, Possession Under Leases.



 









 






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




     (b) Each of the Borrower and the Subsidiaries has complied in all material respects
with all obligations under all material leases to which it is a party and all such leases
are in full force and effect. Each of the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases.



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



     SECTION 3.09. Litigation; Compliance with Laws.




     (a) As of the Effective Date, except as set forth in Schedule 3.09 or as fully covered
by third party insurance, there are no pending or, to the knowledge of the Borrower,
threatened litigation, arbitrations or other proceedings against the Borrower or any
Subsidiary involving a claim for more than $500,000. Except as noted on Schedule 3.09,
there are no lawsuits, claims, arbitrations or other proceedings which, if adversely
determined, whether individually or in the aggregate, would have a Material Adverse Effect.
As of the Effective Date, to the knowledge of the Borrower, except as set forth in Schedule
3.09, neither the Borrower nor any Subsidiary is a party or subject to or in default under
any material judgment, order, injunction or decree of any Governmental Authority or
arbitration tribunal. Except as set forth in Schedule 3.09, there are no actions, suits,
investigations or proceedings at law or in equity or by or before any arbitrator or
Governmental Authority now pending or, to the knowledge of the Borrower, threatened against
or affecting the Borrower, any of the Subsidiaries or any business, property or rights of
the Borrower or any of the Subsidiaries (i) which involve any Loan Document or (ii) as to
which there is a reasonable possibility of an adverse determination and which, if adversely
determined, could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.




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



 









 






Except as set forth in Schedule 3.09 and as of the Effective Date, to the knowledge of
the Borrower, there is no pending or threatened investigation of the Borrower or a
Subsidiary by any Governmental Authority.



     SECTION 3.10. Agreements.




     (a) Each indenture or other agreement or instrument evidencing Indebtedness and each
other material agreement, contract, lease, license, commitment or other instrument (within
the meaning of 17 C.F.R. §229.601(b)(10)(1996)) to which the Borrower or any of the
Subsidiaries is a party or by which it or any of its properties or assets are or may be
bound as of the Effective Date is listed on Schedule 3.10 hereto (collectively with the
Subordinated Notes and any agreements listed on Schedule 3.20, the “Material
Contracts”).




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



     SECTION 3.11. Federal Reserve Regulations.




     (a) Neither the Borrower nor any of the Subsidiaries is engaged principally, or as one
of its important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.




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



     SECTION 3.12. Investment Company Act; Public Utility Holding Company Act. Neither the
Borrower nor any of the Subsidiaries is (a) an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935 or (c) subject to
regulation as a “public utility” or a “public service corporation” or the equivalent under any
Federal or state law.



     SECTION 3.13. Use of Proceeds. The proceeds of all Loans will be used solely (a) to
provide for the ongoing working capital requirements of the Borrower and the Subsidiaries and for
general corporate purposes (including working capital, Capital Expenditures in the ordinary



 









 







course of business and Permitted Acquisitions) and (b) to pay related fees and expenses. The
Letters of Credit will be issued solely (i) to support various financial and other performance
obligations of the Borrower and the Subsidiaries incurred in the ordinary course of business and
(ii) with respect to the JPMorgan Foreign Currency Letters of Credit, to collateralize certain
permitted Indebtedness of certain Foreign Subsidiaries.



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



     SECTION 3.15. No Material Misstatements. The Confidential Information Memorandum and
the exhibits and schedules (except for forecasts and projections) furnished by or on behalf of the
Borrower to the Lenders in connection with the negotiation of any Loan Document or included therein
or delivered pursuant thereto, when taken as a whole and evaluated in the context presented, do not
contain any material misstatement of fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which such information was
provided. Any such exhibit or schedule which constitutes a forecast or a projection was prepared
in good faith, was based on assumptions that the Borrower believes to be reasonable and was based
on the best information reasonably available to the Borrower. The Borrower has no reason to
believe that any such forecasts or projections are misleading in any material respect in light of
the circumstances existing at the time of preparation thereof.



     SECTION 3.16. Employee Benefit Plans.




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




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




     (c) Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither the Borrower



 









 






nor any Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the last valuation date.




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




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




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



     SECTION 3.17. Environmental and Safety Matters. As of the Effective Date, except as
set forth in Schedule 3.17, each of the Borrower and the Subsidiaries has complied in all material
respects with all applicable Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to protection of the environment or to employee health
or safety. As of the Effective Date, except as set forth in Schedule 3.17, neither the Borrower
nor any Subsidiary has received notice of any material failure so to comply. The facilities of the
Borrower and the Subsidiaries do not manage or contain any hazardous wastes, hazardous substances,
hazardous materials, toxic substances, toxic pollutants or similarly denominated substances, as
those terms or similar terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any
other applicable law relating to protection of the environment, human health or to employee health
and safety (collectively, “Hazardous Materials”), in violation in any material respect of
any such law or any regulations promulgated pursuant thereto. Except as set forth in Schedule
3.17, to the knowledge of the Borrowers, there are no events, conditions or circumstances involving
environmental pollution, regulation or control or employee health or safety that are reasonably
likely to result in any material liabilities being incurred by the Borrower or any Subsidiary.



     SECTION 3.18. Security Interests.




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



 









 






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



     SECTION 3.19. Solvency.




     (a) After the making of each Loan made on the Effective Date and the uses of proceeds
therefrom, each of the Borrower and the Subsidiaries will be Solvent on the Effective Date.
“Solvent” means, with respect to any person, that (i) the fair value of the assets
of such person, at a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of such person; (ii) the present fair saleable value of the
property of such person will be greater than the amount that will be required to pay the
liabilities of such person on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (iii) such
person will be able to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) such person will not
have an unreasonably small amount of capital with which to conduct the businesses in which
it is engaged as such businesses are now conducted and are proposed to be conducted. With
respect to any contingent liabilities, such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time, represents the
amount which can reasonably be expected to become an actual or matured liability.




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



     SECTION 3.20. Transactions with Affiliates and Shareholders. Except as set forth in
Schedule 3.20 and except for agreements and arrangements among the Borrower and Wholly Owned
Subsidiaries or among Wholly Owned Subsidiaries, neither the Borrower nor any of the Subsidiaries
is a party to, and none of the properties and assets of the Borrower or any of the Subsidiaries is
subject to or bound by, any agreement or arrangement with, (a) any Affiliate of the Borrower or any
of the Subsidiaries, except in each case those agreements or arrangements that are entered into on
terms not less favorable to the Borrower or any Subsidiary as a comparable transaction on an
arm’s-length basis with an unrelated third party or as may be expressly permitted by Section 6.10,
or (b) any Shareholder. Except as set forth in Schedule 3.20 and except for transactions among the
Borrower and Wholly Owned Subsidiaries or among Wholly Owned Subsidiaries, neither the Borrower nor
any of the Subsidiaries is engaged in any



 









 







transaction with (i) any Affiliate of the Borrower or of any Subsidiary, except in each case
those agreements or arrangements that are entered into on terms not less favorable to the Borrower
or any Subsidiary as a comparable transaction on an arm’s-length basis with an unrelated third
party or as may be expressly permitted by Section 6.10, or (ii) any Shareholder.



     SECTION 3.21. Insurance. The Borrower and the Subsidiaries maintain policies of fire
and casualty, liability, business interruption and other forms of insurance in such amounts, with
such deductibles and against such risks and losses, all of which are in accordance with normal
industry practices. All such policies are in full force and effect, all premiums due and payable
thereon have been paid (other than retroactive or retrospective premium adjustments that are not
yet, but may be, required to be paid with respect to any period under comprehensive general
liability and workmen’s compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which has not been replaced on
substantially similar terms prior to the date of such cancellation. The activities and operations
of the Borrower and the Subsidiaries have been conducted in a manner so as to conform in all
material respects to all applicable provisions of such insurance policies.



     SECTION 3.22. Labor Matters. (a) As of the Effective Date, except as set forth in
Schedule 3.22, there is no labor strike, dispute, work stoppage or lockout pending or, to the
knowledge of the Borrower, threatened against the Borrower or a Subsidiary; (b) to the knowledge of
the Borrower, as of the Effective Date, no union organizational campaign is in progress with
respect to the employees of the Borrower or a Subsidiary; (c) as of the Effective Date, there is no
unfair labor practice charge or complaint against the Borrower or a Subsidiary pending or, to the
knowledge of the Borrower, threatened before the National Labor Relations Board; (d) there are no
pending or threatened union grievances against the Borrower or a Subsidiary as to which there is a
reasonable possibility of adverse determination and that, if so determined, would have a Material
Adverse Effect; (e) there are no pending, or, to the knowledge of the Borrower, threatened, charges
against the Borrower, a Subsidiary or any current or former employee of the Borrower before the
Equal Employment Opportunity Commission or any state or local agency responsible for the prevention
of unlawful employment practices which individually or in the aggregate are reasonably likely to
have a Material Adverse Effect; and (f) as of the Effective Date, none of the Borrower and the
Subsidiaries has received written notice during the past three years of the intent of any
Governmental Authority responsible for the enforcement of labor or employment laws to conduct an
investigation of the Borrower or a Subsidiary and, to the knowledge of the Borrower, no such
investigation is in progress.



     SECTION 3.23. Reportable Transaction. The Borrower does not intend to treat the Loans
and related transactions as being a “reportable transaction” (within the meaning of Treasury
Regulation Section 1.6011-4). In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof in writing.



 









 





ARTICLE IV




CONDITIONS OF LENDING




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




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




     (b) The Administrative Agent shall have received for the account of each Lender
requesting the same a duly executed Note or Notes, dated the Effective Date, complying with
the provisions of Section 2.05. On the Effective Date, the Lenders under the Existing
Credit Agreement will return the notes issued pursuant to the Existing Credit Agreement to
the Borrower for cancellation, and such Notes will be (to the extent new Notes are
requested) replaced, as applicable, by the Notes dated the Effective Date and issued to the
Lenders hereunder.




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




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



 









 






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




     (iii) searches of Uniform Commercial Code filings in the jurisdiction of
incorporation and the chief executive office of the Borrower and each Subsidiary and
each jurisdiction where any Collateral is located and where a filing was made in
connection with the Original Credit Agreement or the Existing Credit Agreement and
the Collateral Documents, confirming (subject to the Effective Date Filings and to
the extent filing is required) the perfected security interest in the Collateral in
favor of the Collateral Agent for the benefit of the Secured Parties; and




     (iv) title commitments in respect of the real property subject to the Mortgages
issued by title insurance companies, and in form and substance, satisfactory to the
Administrative Agent.




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




     (e) The Administrative Agent shall have received:




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




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




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



 









 






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




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




     (f) The Borrower shall have paid all Fees and other amounts due and payable to the
Administrative Agent or any Lender on or prior to the Effective Date, including, without
limitation, all fees and other amounts accrued to the Effective Date to the Administrative
Agent for the account of each Lender pursuant to Section 2.05 of the Existing Credit
agreement.




     (g) No Material Adverse Change shall have occurred (i) since August 31, 2005 or (ii)
relative to the pro-forma financial statements in the Confidential Information Memorandum.




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




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




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




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




     (l) Each Lender which is not already a party to the Collateral Agency Agreement shall
have executed a counterpart thereof and each Existing Lender which is



 









 






not a Lender hereunder shall have executed a consent hereto in form reasonably
satisfactory to the Administrative Agent.




     (m) The Administrative Agent shall have received the certificates of insurance relating
to insurance that are required pursuant to Section 5.02 naming the Collateral Agent as an
additional insured and loss payee.




     (n) A Master Consent and Amendment amending the Collateral Agency Agreement and the
Senior Note Purchase Agreement in form and substance satisfactory to the Administrative
Agent shall have been executed and delivered by the requisite parties.



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




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




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




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




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


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




 









 








ARTICLE V




AFFIRMATIVE COVENANTS




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



     SECTION 5.01. Existence, Businesses and Properties.




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




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



     SECTION 5.02. Insurance.




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




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



 









 






     (c) In connection with the covenants set forth in this Section 5.02, it is understood
and agreed that:




     (i) none of the Administrative Agent, the Lenders, the Issuing Bank or their
respective agents or employees shall be liable for any loss or damage insured by the
insurance policies required to be maintained under this Section 5.02, it being
understood that (A) the Borrower and the Subsidiaries shall look solely to their
insurance companies or any other parties other than the aforesaid parties for the
recovery of such loss or damage and (B) such insurance companies shall have no
rights of subrogation against the Administrative Agent, the Lenders, the Issuing
Bank or their Affiliates, agents or employees;




     (ii) upon the occurrence of an Event of Default, the Borrower will permit an
insurance consultant retained by the Administrative Agent, at the expense of the
Borrower, to review the insurance policies maintained by the Borrower and the
Subsidiaries; and




     (iii) the designation of any form, type or amount of insurance coverage by the
Administrative Agent or the Lenders under this Section 5.02 shall in no event be
deemed a representation, warranty or advice by the Administrative Agent or the
Lenders that such insurance is adequate for the purposes of the business of the
Borrower and the Subsidiaries or the protection of their properties.



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



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




     (a) as soon as available, and in any event within 105 days after the end of each Fiscal
Year (i) its consolidated and consolidating balance sheet and related consolidated and
consolidating statements of operations and cash flows, showing the consolidated and
consolidating financial position of the Borrower and its Consolidated Subsidiaries as of the
close of such Fiscal Year and the consolidated and consolidating results of their operations
and cash flows during such year, in each case setting forth in comparative form the figures
for the preceding Fiscal Year, with all of the consolidated statements having been audited
by a nationally recognized independent public accounting



 









 






firm and accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such financial statements fairly present the
consolidated financial position and consolidated results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently applied and
(ii) copies of its Annual Report on Form 10-K prepared in compliance with the requirements
therefor and filed with the SEC;




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




     (c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, an Officer’s Certificate of the Borrower certifying that no Default or Event of
Default has occurred or, if such a Default or Event of Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto;




     (d) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer of the Borrower, substantially in the form of
Exhibit F hereto, (i) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants contained in Sections 6.12
and 6.13, (ii) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating the Consolidated Leverage Ratio, and (iii) stating
whether, since the date of the most recent Required Financial Statements previously
delivered, there has been any material change in the generally accepted accounting
principles applied in the preparation of the Borrower’s financial statements and, if so,
describing such change;




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



 









 






     (f) promptly upon completion, but in any event not later than 45 days after the
commencement of each Fiscal Year, a copy of projections by the Borrower of its consolidated
balance sheet and related consolidated statements of operations and cash flows for such
Fiscal Year (including all material assumptions to such projections) and a budget for such
Fiscal Year, all in form customarily prepared by the Borrower’s management, such projected
financial statements to be accompanied by a certificate of a Financial Officer to the effect
that such projected financial statements have been prepared in good faith, based on
assumptions that the Borrower believes to be reasonable and based on the best information
available to the Borrower and that such Financial Officer has no reason to believe they are
misleading, in any material respect in light of the circumstances existing at the time of
preparation thereof;




     (g) at least 10 but not more than 30 days prior to any Permitted Acquisition, financial
projections covering the period from the date of such Permitted Acquisition through the
Revolving Credit Maturity Date giving effect to such Permitted Acquisition and demonstrating
compliance by the Borrower on a pro forma basis with the covenants in Article VI from and
after the date of, and after giving effect to such Permitted Acquisition through the
Revolving Credit Maturity Date (such projections to be certified by a Financial Officer of
the Borrower as having been prepared in good faith on the basis of assumptions believed by
the Borrower to be reasonable);




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




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



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




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




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



 









 






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




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




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




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




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




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



     SECTION 5.06. ERISA.




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




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



 









 






reorganization or insolvency (within the meaning of such terms as used in ERISA) of,
any Single Employer Plan or Multiemployer Plan.



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



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



     SECTION 5.09. Interest Rate Protection Agreements. After the Effective Date in the
event the Borrower elects to enter into and thereafter maintain in full force and effect Interest
Rate Protection Agreements, then such Interest Rate Protection Agreements shall be at rates and on
terms reasonably satisfactory to the Administrative Agent and the Borrower; provided,
that, it is understood and agreed that any Interest Rate Protection Agreement entered into
with any person other than a Lender must be unsecured. The Borrower will promptly deliver evidence
of the execution and delivery of such Interest Rate Protection Agreements to the Administrative
Agent.



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



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




     (a) The Borrower will, and will cause each Subsidiary to, comply, and use its best
efforts to cause all lessees and other persons occupying the properties owned or leased by
the Borrower and the Subsidiaries to comply, in all material respects with all environmental
laws and environmental permits applicable to its operations and properties except to the
extent that the failure to comply therewith could not reasonably be expected to result in
liability in excess of $500,000; obtain and renew all material environmental permits
necessary for its operations and properties; and conduct any remedial action required under,
and in accordance with, environmental laws, except to the extent that: (i) the cost of such
remedial action could not reasonably be expected to exceed $500,000; or (ii) the necessity
of any such remedial action is being contested in good faith by



 









 






appropriate proceedings timely instituted and diligently pursued and in the manner
provided by applicable law.




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



     SECTION 5.12. Subsidiaries. The Borrower shall cause each and every Domestic
Subsidiary that is organized or acquired subsequent to the Effective Date to execute and deliver an
Intercompany Note and a Supplemental Agreement immediately upon and contemporaneously with their
organization or acquisition. The Borrower will cause each and every Wholly Owned Subsidiary that
is a Foreign Subsidiary and each and every Foreign Subsidiary that is not a Wholly Owned Subsidiary
that is existing as of the Effective Date, or organized or is acquired subsequent thereto, to (x)
prior to the date the applicable Foreign Subsidiary incurs Intercompany Indebtedness to the
Borrower or a Wholly Owned Subsidiary that is a Domestic Subsidiary, at which time and as a
condition to that borrowing, such Foreign Subsidiary shall execute and deliver an Intercompany
Note, and (y) in the event any Foreign Subsidiary borrows funds (as permitted hereunder) in excess
of $250,000 from the Borrower or any Domestic Subsidiary, contemporaneously with such borrowing,
deliver an opinion of counsel reasonably required by the Administrative Agent and the Collateral
Agent, as the case may be, regarding the enforceability thereof and the Lender’s security interest
therein. Nothing in this Section 5.12 shall be deemed to imply that any such acquisition or
organization of a Subsidiary is permitted under this Amended Agreement.



     SECTION 5.13. Further Assurances. Within 10 days after a request by the
Administrative Agent, the Collateral Agent or the Required Lenders, the Borrower will, and will
cause each Subsidiary to, execute any and all further documents, financing statements, agreements
and instruments, and take all further action (including filing Uniform Commercial Code and other
financing statements that may be required under applicable law, or that the Required Lenders, the
Administrative Agent or the Collateral Agent may reasonably request), in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant, maintain, preserve, protect
and perfect the validity and first priority of the security interests created or intended to be
created by the Collateral Documents. Such security interests and Liens will be created under the
Collateral Documents and other security agreements, instruments and



 









 







documents in form and substance satisfactory to the Administrative Agent and the Collateral
Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all such instruments
and documents (including legal opinions and lien searches) as the Administrative Agent and the
Collateral Agent shall reasonably request to evidence compliance with this Section 5.13. The
Borrower agrees to provide such evidence as the Administrative Agent and the Collateral Agent shall
reasonably request as to the perfection and priority status of each such security interest and
Lien.



     SECTION 5.14. Foreign Subsidiaries. With respect to those Foreign Subsidiaries that
are Wholly Owned Subsidiaries and listed on Schedule 5.14, the Borrower agrees (to the extent it
has not already done so) to cause such Foreign Subsidiaries to execute and deliver to the Borrower,
and then to the Collateral Agent pursuant to the Pledge Agreement, all within 90 days from the
Effective Date, Intercompany Notes executed on behalf of such Foreign Subsidiaries.



ARTICLE VI




NEGATIVE COVENANTS




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



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




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




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




     (c) Intercompany Indebtedness existing on the Effective Date that is set forth on
Schedule 6.01, or arising thereafter; provided, that (i) in the case of
Intercompany Indebtedness existing on the Effective Date, all such Indebtedness is listed on
Schedule 6.01, (ii) in the case of Intercompany Indebtedness arising after the Effective
Date, all such Indebtedness is evidenced by Intercompany Notes pledged to the Collateral
Agent pursuant to the Pledge Agreement and is permitted pursuant to Section 6.04(b);
provided, that, the aggregate Intercompany Indebtedness of Foreign
Subsidiaries to the Borrower or any Domestic Subsidiary shall not exceed $60,000,000 at any
time and, contemporaneously with any loan or advance to a Foreign Subsidiary, if required by
the terms of Section 5.12, the Borrower shall deliver or cause to be delivered to the
Collateral Agent an opinion of counsel to such Foreign Subsidiary, in form and substance
reasonably satisfactory to the Collateral Agent, stating that the applicable Intercompany



 









 






Note is the valid, binding and enforceable obligation of such Foreign Subsidiary and
(iii) Intercompany Indebtedness that is created between Domestic Subsidiaries that are
Wholly Owned Subsidiaries is not required to be evidenced by Intercompany Notes; provided
that such Indebtedness (A) is incurred in good faith, in the ordinary course of business,
and for a legitimate company purpose, (B) is unsecured and (C) is, by its terms, not
assignable, transferable, sellable, or otherwise pledgeable to any third party;




     (d) Indebtedness for borrowed money of Foreign Subsidiaries to unrelated third parties
(including guarantees with respect thereto by the Borrower or any other Subsidiaries, so
long as such guarantees are unsecured; provided, that such guarantees may be
secured by Liens on the assets (other than Capital Stock) of the applicable Foreign
Subsidiary)) that does not exceed $30,000,000 in an aggregate amount outstanding at any
time, (which Indebtedness includes the Indebtedness described in item 5 of Schedule 6.01);




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




     (f) Indebtedness owed to any person providing worker’s compensation, health, disability
or other employee benefits, property, casualty or liability insurance to the Borrower or any
Subsidiary, so long as such Indebtedness shall not be in excess of the amount of the unpaid
cost or estimated or negotiated amounts of, and shall be incurred only to defer the cost or
estimated or negotiated amounts of, such insurance for the applicable insurance period for
which such Indebtedness is incurred and such Indebtedness shall be outstanding only during
such period (which period shall not extend beyond the date that is two years after the date
on which such Indebtedness is incurred);




     (g) Indebtedness (including Capital Lease Obligations and Purchase Money Indebtedness)
issued or assumed as the deferred purchase price of property or services (excluding trade
accounts payable arising in the ordinary course of business and paid in accordance with
customary trade terms) in a principal amount at any time outstanding not in excess of
$5,000,000 and incurred to finance Capital Expenditures permitted by Section 6.12;




     (h) Interest Rate Protection Agreements entered into in accordance with Section 5.09;




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




     (j) Indebtedness issued to a seller or assumed as the deferred purchase price of a
person (or to which the acquired person is subject), business or asset in connection with a
Permitted Acquisition pursuant to Section 6.04(g); provided, that (i) such
Indebtedness is not secured by a Lien on any assets other than assets acquired in such
Permitted Acquisition, (ii) any Indebtedness issued or assumed pursuant to this Section



 









 






6.01(j) may not be refinanced in any manner except with Revolving Loans and (iii) the
aggregate principal Dollar Amount of all such Indebtedness outstanding at any time (together
with the aggregate principal amount of Indebtedness outstanding at such time pursuant to
Section 6.01(m)) shall not exceed $30,000,000;




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




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




     (m) Indebtedness arising under the Romaco Notes; provided that the outstanding
principal amount of such Indebtedness, together with the outstanding aggregate principal
Dollar Amount of Indebtedness incurred pursuant to Section 6.01(j) shall at no time exceed
$30,000,000;




     (n) Indebtedness of any Italian Subsidiary, any German Subsidiary, any UK Subsidiary,
any Canadian Subsidiary that (i) does not exceed, for all such Subsidiaries on a collective
basis, $50,000,000 in the aggregate, (ii) is collateralized by a JPMorgan Foreign Currency
Letter of Credit, and (iii) is unsecured;




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




     (p) Indebtedness of the Borrower or any of its Subsidiaries incurred in connection with
the issuance of Bank Guarantees; provided, that (i) the aggregate principal
Dollar Amount of such Bank Guarantees does not exceed $15,000,000 at any one time and (ii)
such Bank Guarantees shall be (A) incurred in good faith, in the ordinary course of business
and for a legitimate company purpose, (B) unsecured and (C) otherwise issued on terms
satisfactory to the Administrative Agent and the Required Lenders; and




     (q) Unsecured Indebtedness the net proceeds of which are used to refinance the
Subordinated Notes, provided, that, such Indebtedness shall have subordination terms at
least as favorable to the Lenders as those in the Subordinated Notes and shall otherwise be
on terms satisfactory to the Administrative Agent and the Required Lenders; and further
provided that the Borrower shall not refinance the Subordinated Notes prior to maturity
pursuant to any subsection of this Section 6.01 with Indebtedness which is not so
subordinated unless the Consolidated Leverage Ratio is, on a pro forma basis giving effect
to such refinancing, less than 3.75 to 1.0.



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



 









 







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




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




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




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




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




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




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




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




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




     (i) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements, constructed) by the Borrower
or any Subsidiary; provided, that (i) such security interests secure
Indebtedness permitted by Section 6.01(g), (ii) such security interests are incurred, and
the Indebtedness secured thereby is created, within 90 days after such acquisition (or
completion of construction), (iii) the Indebtedness secured thereby does not exceed 100% of
the lesser of the cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or completion of construction) and (iv) such
security interests do not apply to any other property or assets of the Borrower or any
Subsidiary;



 









 






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




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




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



     SECTION 6.03. Certain Amendments. The Borrower will not, and will not cause or permit
any of the Subsidiaries to, enter into any amendment, modification or waiver of (a) the Certificate
of Incorporation or By-laws or comparable governing instruments of the Borrower or any of the
Subsidiaries as in effect on January 8, 1999, other than amendments, modifications and waivers
which are not, individually or in the aggregate, adverse in any material respect to the rights or
interests of the Lenders, (b) the Subordinated Notes or (c) the Senior Note Purchase Agreement, in
each case without the written consent of the Lenders required under the Collateral Agency
Agreement.



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




     (a) (i) equity investments existing on the Effective Date by the Borrower in the
Subsidiaries and listed on Schedule 6.04, (ii) contributions of equity made after the
Effective Date to Subsidiaries of the Borrower that do not exceed $15,000,000 in the
aggregate during any Fiscal Year, as long as such contributions are not made for the purpose
of funding an acquisition not otherwise permitted hereunder, and (iii) treasury stock held
by the Borrower and its Subsidiaries on the Effective Date and listed on Schedule 6.04 or
acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06(a);




     (b) loans and advances made after the Effective Date by the Borrower or any Wholly
Owned Subsidiary that is a Domestic Subsidiary to any Subsidiary or the Borrower;
provided, that, any such loan or advance (i) is evidenced by an Intercompany
Note pledged and delivered to the Administrative Agent on behalf of the Secured Parties
pursuant to the Pledge Agreement (other than as excepted in clause (iii) of Section
6.01(c)), and (ii) is otherwise permitted pursuant to Section 6.01 (c);



 









 






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




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




     (e) Cash Equivalents;




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




     (g) in connection with one or more non-hostile acquisitions by the Borrower or any
Qualified Acquisition Subsidiary, any assets or Capital Stock (other than Margin Stock) of
any other person (such assets, in the case of an asset acquisition, or person, in the case
of the acquisition of Capital Stock, is referred to herein as the “Acquired Entity”)
so long as (A) in the case of an acquisition of assets, such assets are to be used, and in
the case of an acquisition of Capital Stock, the person so acquired is engaged, in a
business substantially similar or related to the businesses of the Borrower on the date
hereof, (B) the Borrower shall have provided the Lenders with the financial projections
required by Section 5.04(g) and such other information as the Lenders shall reasonably
request, (C) on the date of such acquisition and immediately after giving effect thereto,
the representations and warranties set forth in Article III shall be true and correct in all
material respects with the same effect as though made on and as of such date and no Default
or Event of Default shall exist, (D) after giving effect to such Permitted Acquisition (as
defined below), the Borrower shall have delivered to the Administrative Agent calculations
satisfactory to the Administrative Agent demonstrating that on a pro forma basis the
Borrower is in compliance with Sections 6.13(a) and (b), (E) in the case of an acquisition
of Capital Stock of a person, then simultaneously with any such acquisition, the Collateral
Agent for the benefit of the Secured Parties shall be granted (i) in the case of a person
organized under the laws of the United States, any State thereof or the District of
Columbia, a first priority security interest in all real and personal property of such
person and in all of such Capital Stock acquired by the Borrower or any Qualified
Acquisition Subsidiary as part of such acquisition, and (ii) in the case of a person
organized under the laws of a jurisdiction other than the United States, any State thereof
or the District of Columbia, that will be acquired directly by the Borrower or a Domestic
Subsidiary, a first priority security interest in 65% of all of the Capital Stock of the
person so acquired, and in all cases the Borrower shall, and shall cause any applicable
Subsidiary to, execute any documents (including a Supplemental Agreement, Intercompany Note,
financing statements and other Collateral Documents) and take all action (including filing
financing statements and obtaining and providing consents, and legal opinions) that may be
required under applicable law, or that the Administrative Agent or the Collateral Agent may
request, in order to grant, preserve, protect and perfect such security interest, (F) in the
case of an acquisition of Capital Stock of a person, the Borrower acquires directly or
indirectly 100% of the Capital Stock of such person; and



 









 






(G) the total aggregate consideration for any single acquisition (or series of related
acquisitions) of such Capital Stock or assets shall not exceed (i) $20,000,000 if
immediately prior, and after giving effect, to such acquisition, the Consolidated Leverage
Ratio is less than 3.00 to 1.00 and the Consolidated Fixed Charge Coverage Ratio is not less
than 2.75 to 1.00 and (ii) $5,000,000 (and $15,000,000 in the aggregate for all such
acquisitions in any Fiscal Year) if immediately prior, and after giving effect, to such
acquisition, the Consolidated Leverage Ratio is less than 3.25 to 1.00 and the Consolidated
Fixed Charge Coverage Ratio is not less than 2.50 to 1.00 (such consideration in clauses (i)
and (ii) above to include, without limitation, the amount of Indebtedness incurred pursuant
thereto as permitted by Section 6.01(j)) (any acquisition satisfying each of the criteria
set forth in the preceding clauses (A) through (G) being referred to herein as a
“Permitted Acquisition”);




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




     (i) loans to any Affiliate of the Borrower or its Subsidiaries; provided,
that, (i) such loans do not exceed an aggregate amount equal to $5,000,000 at any
one time outstanding, and (ii) all such loans are evidenced by Intercompany Notes pledged to
the Administrative Agent and the Lenders pursuant to the Pledge Agreement; and




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



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




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




     (b) any Subsidiary may be merged, liquidated or consolidated with or into the Borrower
or any Domestic Subsidiary that is a Wholly Owned Subsidiary if, immediately after giving
effect to such transaction, no condition or event shall exist which constitutes a Default or
Event of Default and the relevant Borrower or such Domestic Subsidiary, as applicable, is
the surviving entity;



 









 






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




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




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




     (f) the Borrower and any of the Subsidiaries may sell, lease, transfer, assign or
dispose of assets to any other person to the extent that the aggregate Net Cash Proceeds
from such sale, lease, transfer, assignment or other disposition to such person do not
exceed $2,500,000, so long as the fair market value of all property disposed of pursuant to
this clause (f) does not exceed $5,000,000 in the aggregate in any Fiscal Year;




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




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




     (i) the Borrower may make equity contributions to Wholly Owned Subsidiaries to the
extent permitted by Section 6.04(a)(ii);




     (j) the Borrower and the Subsidiaries may make Capital Expenditures to the extent
permitted by Section 6.12;




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




     (l) a non-Wholly owned Foreign Subsidiary may issue Capital Stock to third parties as
long as (i) the proceeds thereof are used for working capital purposes of such Subsidiary or
to finance the acquisition of capital assets in the ordinary course of business; and (ii)
the issuer remains a majority-owned Subsidiary of the Borrower after the issuance of such
Capital Stock;




     (m) the Borrower and its Subsidiaries may dispose of assets in sale lease back
transactions to the extent the aggregate Net Cash Proceeds thereof do not exceed $5,000,000;




     (n) the Borrower and any of its Subsidiaries may transfer the stock of any Subsidiary
to any Wholly Owned Subsidiary if, immediately after giving effect to such transfer, no
condition or event shall exist which constitutes a Default or Event of Default;



 









 






provided, however, that the stock of a Domestic Subsidiary may not be transferred to a
Foreign Subsidiary pursuant to this subsection;




     (o) the Borrower and any Subsidiaries may sell, lease, transfer, assign or dispose of
(i) real estate and fixed assets relating to the Borrower’s (A) Technoglass facility located
in Italy and (B) Mexico City facility located in Mexico City, Mexico and (ii) (A) certain
assets of Edlon, Inc. comprising its Lined Pipe and Fittings product line for an aggregate
sale amount of approximately $8,500,000 and (B) certain real and personal property and
buildings comprising Edlon, Inc.’s Charleston, West Virginia facility; and




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



     SECTION 6.06. Dividends, Distributions and Other Restricted Payments.




     (a) The Borrower will not, and will not cause or permit any of the Subsidiaries to, (i)
declare or pay, directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise and including any tax sharing or indemnification
payments), whether in cash, property, securities or a combination thereof, with respect to
any Capital Stock of the Borrower or any of the Subsidiaries, (ii) except as expressly
permitted pursuant to Section 6.06(b) below and except for Capital Stock reacquired by the
Borrower in connection with the exercise of stock options granted pursuant to employee or
director stock option plans of the Borrower or in connection with withholding taxes due
under any stock plan in which employees or directors participate, directly or indirectly
redeem, purchase, retire or otherwise acquire for value, any Capital Stock of the Borrower
or any of the Subsidiaries, whether such acquisition is made at the option of the Borrower
or such Subsidiary or at the option of the holder of such Capital Stock and whether or not
such acquisition is required under the terms and conditions applicable to such Capital Stock
or set aside any amount for any such purpose, (iii) release, cancel, compromise or forgive
in whole or in part any Indebtedness evidenced by the Intercompany Notes or (iv) directly or
indirectly redeem, purchase, prepay, retire, defease or otherwise acquire for value any
Indebtedness (other than Obligations), whether such acquisition is made at the option of the
Borrower or such Subsidiary or at the option of the holder of such Indebtedness and whether
or not such acquisition is required under the terms and conditions applicable to such
Indebtedness, or set aside any amount for any such purpose, except for repayments of
principal of any such Indebtedness in accordance with the scheduled amortization thereof;
provided, that (v) any Subsidiary may declare and pay dividends or make
other distributions to the Borrower or any Wholly Owned Subsidiary, (w) as long as no Event
of Default then exists, the Borrower may pay cash dividends to the holders of its Capital
Stock and repurchase or redeem Capital Stock of the Borrower in each Fiscal Year of the
Borrower that do not exceed the greater of (A) the sum of (1) fifty percent (50%) of the
Borrower’s Consolidated Net Income for the preceding Fiscal Year and (2) the Carry Over
Amount, if any, for that Fiscal Year or (B) $3,500,000, (x) the Borrower may prepay the
Senior Notes so long as no Event of Default has occurred and is continuing on the date of
such prepayment, (y) subject to Section 6.01(q), the Borrower may prepay the Subordinated
Notes so long as no Event of Default has occurred and is continuing on the date of such



 









 






prepayment and so long as, after giving effect to such payment or prepayment, the
Consolidated Leverage Ratio is less than 3.75 to 1.00 and, (z) as a condition to any
payments made pursuant to clauses (w), (x) or (y) preceding, after giving effect to such
payment or prepayment, as the case may be, the Borrower is in compliance on a pro forma
basis with the covenants contained in this Article VI from the date of such payment or
prepayment through the Revolving Credit Maturity Date, and the Borrower shall, prior to the
date of such payment or prepayment (other than with respect to the payment of cash dividends
and the repurchase or redemption of Capital Stock), as the case may be, deliver to each
Lender projections (certified in accordance with Section 5.04(g)) demonstrating such
compliance.




     (b) In connection with a Permitted Acquisition in which Capital Stock of the Borrower
is to be issued as all or part of the consideration therefor, the Borrower or a Restricted
Subsidiary may repurchase a number of shares of the Capital Stock of the Borrower which is
not greater than the number of shares of the Borrower’s Capital Stock issued or to be issued
in connection with such Permitted Acquisition so long as: (i) all of such Capital Stock is
repurchased during the fiscal quarter of the Borrower in which the Permitted Acquisition
occurs, (ii) the aggregate consideration paid for the Capital Stock so repurchased, together
with all other consideration paid in such Permitted Acquisition (other than consideration
consisting of a number of shares of the Borrower’s Capital Stock not greater than the number
of shares so repurchased) does not exceed the amount permitted by Section 6.04(g), and (iii)
immediately prior, and after giving effect, to the incurrence of any Indebtedness used to
effect such repurchase of Capital Stock, (A) if such Permitted Acquisition was accomplished
pursuant to Section 6.04(g)(G)(i), the Consolidated Leverage Ratio is less than 3.00 to 1.00
and the Consolidated Fixed Charge Coverage Ratio is not less than 2.75 to 1.00, and (ii) if
such Permitted Acquisition was accomplished pursuant to Section 6.04(g)(G)(ii), the
Consolidated Leverage Ratio is less than 3.25 to 1.00 and the Consolidated Fixed Charge
Coverage Ratio is not less than 2.50 to 1.00; provided, that, any such
repurchase of Capital Stock of the Borrower in connection with a Permitted Acquisition that
is not completed must otherwise be permitted under Section 6.06(a).



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



     SECTION 6.08. Limitation on Restrictions on Subsidiary Dividends, etc. The Borrower
will not, and will not cause or permit any of the Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction
or any restriction in its articles of incorporation (except restrictions imposed by state law),
By-laws or comparable governing instruments on the ability of any Subsidiary to (a) pay dividends
or make any other distributions on or in respect of its Capital Stock, or pay any indebtedness owed
to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any



 









 







Subsidiary or (c) except in agreements entered into in connection with a transaction permitted
by Section 6.02(i), transfer any of its properties or assets to the Borrower or any Subsidiary,
except for such encumbrances or restrictions existing under or by reason of (i) customary
non-assignment provisions in any lease governing a leasehold interest or in any other contract
governing a contract right which in the ordinary course of business is not assignable or (ii) this
Amended Agreement and the Collateral Documents.



     SECTION 6.09. No Other Negative Pledges. The Borrower will not, and will not cause or
permit any of the Subsidiaries to, directly or indirectly, enter into any agreement prohibiting the
creation or assumption of any Lien upon the properties or assets of the Borrower or any Subsidiary,
whether now owned or hereafter acquired, or requiring an obligation to be secured if some other
obligation is secured, except for this Amended Agreement and except in agreements entered into in
connection with a transaction permitted by Section 6.02(i), Section 6.02(l) or Section 6.01(n).



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



     SECTION 6.11. Business of Borrower and Subsidiaries. The Borrower will not, and will
not cause or permit any of the Subsidiaries to, engage at any time in any business or business
activity other than the businesses conducted by it on the Effective Date, other businesses
generally considered to be a part of the fluids management industries and business activities
reasonably incidental thereto. The Borrower will not permit the Subsidiary Borrower to cease to be
a Wholly Owned Subsidiary.



     SECTION 6.12. Capital Expenditures. The Borrower will not permit the aggregate amount
of Capital Expenditures made in any Fiscal Year by the Borrower and its Subsidiaries taken as a
whole to exceed $30,000,000 plus the amount, if any, by which Capital Expenditures for the
immediately preceding Fiscal Year are less than $30,000,000.



 









 





     SECTION 6.13. Financial Covenants.




     (a) Consolidated Fixed Charge Coverage Ratio. The Borrower will not permit the
Consolidated Fixed Charge Coverage Ratio (i) to be less than 1.75 to 1.00 for any Reference
Period ending on or prior to May 31, 2006 and (ii) to be less than 2.00 to 1.0 for any
Reference Period ending thereafter.




     (b) Consolidated Leverage Ratio. The Borrower will not permit the Consolidated
Leverage Ratio to exceed 4.25 to 1.00 for any Reference Period ending on or prior to May 31,
2006 and (ii) to exceed 4.0 to 1.0 for any Reference Period ending thereafter.




     (c) Minimum Consolidated Net Worth. The Borrower will not permit its
Consolidated Net Worth as of the last day of any fiscal quarter of the Borrower to be less
than the Minimum Compliance Level at any time during the term of this Amended Agreement.
The “Minimum Compliance Level” shall initially be $250,000,000 as of November 30, 2005;
provided, that, as of the fiscal quarter end of any fiscal quarter in which
any Romaco Sale is consummated, the Minimum Compliance Level shall be the higher of (a)
$200,000,000 plus the amount of any Increases (as defined below) which have previously
occurred or which occur as of such fiscal quarter end and (b) 80% of the Consolidated Net
Worth as set forth in the certificate of the Borrower delivered pursuant to Section 5.04(d)
for the fiscal quarter in which such sale occurred. The Minimum Compliance Level shall be
increased (any such increase being an “Increase”) as of the last day of each fiscal quarter
of the Borrower ending on or after February 28, 2006 by an amount equal to the sum of (a)
50% of Consolidated Net Income (if positive) for such fiscal quarter, (b) 50% of the Net
Cash Proceeds of the issuance of any Capital Stock of the Borrower or any Subsidiary that
does not constitute Disqualified Stock and 80% of the Net Cash Proceeds of the issuance of
any Disqualified Stock of the Borrower or any Subsidiary and (c) from and after the date of
any conversion to equity of the Convertible Debt in accordance with the terms thereof, an
aggregate amount equal to 80% of the book value of the increase in the capital and surplus
of the Borrower resulting from such conversion of the Convertible Debt; provided,
that, nothing in this paragraph shall be construed to permit the issuance of any
such Capital Stock or Disqualified Stock. It is understood that the first increase in the
Minimum Compliance Level pursuant to the foregoing provisions shall be determined as of the
Borrower’s fiscal quarter ending February 28, 2006. The foregoing increases in the Minimum
Compliance Level shall be fully cumulative and no reduction in the Minimum Compliance Level
shall be made to reflect negative Consolidated Net Income for any period.



ARTICLE VII




EVENTS OF DEFAULT




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



 









 






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




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




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




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




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




     (f) the Borrower or any Subsidiary shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness in a principal amount in excess of
$2,500,000, when and as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any Indebtedness in excess of $4,000,000 if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf to cause, with or without the
giving of notice or the lapse of time or both, such Indebtedness to become due prior to its
stated maturity;




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



 









 






proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;




     (h) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition
described in paragraph (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for such party
or for a substantial part of its property or assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing.




     (i) one or more judgments or orders for the payment of money in an aggregate amount in
excess of $500,000 shall be rendered against the Borrower or any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any judgment creditor shall
levy upon assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;




     (j) (i) any person shall engage in any “prohibited transaction” (as defined in Section
406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding
deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, or any Lien shall arise on the assets of the Borrower or any Commonly
Controlled Entity in favor of the PBGC or a Plan, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed (or a trustee shall be
appointed) to administer, or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for purposes of Title
IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the termination, reorganization or insolvency of (within the meaning of
such terms as used in ERISA), a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and, in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or conditions, if any,
could reasonably be expected to result in liability of the Borrower and the Subsidiaries in
an aggregate amount exceeding $2,500,000 or require payments by the Borrower and the
Subsidiaries exceeding $1,000,000 in any year;




     (k) any Lien purported to be created by any Collateral Document shall cease to be, or
shall for any reason be asserted by the Borrower or any Subsidiary not to be, a valid,
perfected, first priority Lien on the securities, properties or, assets covered thereby,



 









 






except as priority may be affected by Liens permitted under Section 6.02 and except for
releases of Collateral in accordance with all applicable provisions of this Amended
Agreement and the Collateral Documents;




     (l) any Loan Document or any material provision of any Loan Document shall be declared
by any Governmental Authority to be invalid or unenforceable in whole or in part, or shall
be asserted by the Borrower or any Subsidiary not to be, in full force and effect and
enforceable in accordance with its terms;




     (m) any adverse change in the material agreements or relationships of the Borrower and
the Subsidiaries shall occur and such event or condition, together with all other such
events or conditions, if any, could, in light of all the then existing circumstances,
reasonably be expected to result in net losses, claims or actions (after tax) to which the
Borrower or its Subsidiaries are or may become subject (with or without the passage of time)
in an amount equal to or greater than the greater of (i) $10,000,000 or (ii) 7% of the
Borrower’s Consolidated Net Worth;




     (n) any material intellectual property or any material license relating thereto shall
be invalid or unenforceable in whole or in part or shall for any reason not be in full force
and effect and enforceable by the Borrower and the Subsidiaries or shall infringe the rights
of any other person or any other adverse change in the material intellectual property rights
of the Borrower and the Subsidiaries shall occur and such event or condition, together with
all other such events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect;




     (o) either (i) the Borrower or any Subsidiary shall be liable, whether directly,
indirectly through required indemnification of any person or otherwise, for the costs of
investigation and/or remediation of any Hazardous Material originating from or affecting
property or properties, whether or not owned, leased or operated by the Borrower or any
Subsidiary, which liability, together with all other such liabilities, could reasonably be
expected to exceed $10,000,000 or require payments exceeding $3,000,000 in any year or (ii)
any Federal, state, regional, local or other environmental regulatory agency or authority
shall commence an investigation or take any other action that could reasonably be expected
to be determined adversely to the Borrower or any Subsidiary and, on the basis of such a
determination, to have a Material Adverse Effect; or




     (p) either shall occur (i) any Change of Control (as defined in this Amended Agreement)
or (ii) any change of control as contemplated by any of the Subordinated Notes;


then, and in every such event, and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, take one or more of the
following actions, at the same or different times: (i) by notice to the Borrowers terminate the
Commitments and they shall immediately terminate; (ii) by notice to the Borrowers declare the Loans
then outstanding to be forthwith due and payable (in whole or, in the sole discretion of the
Required Lenders, from time to time in part, provided that any such partial acceleration shall be
made pro rata based on the outstanding principal amount of Loans of each Class), whereupon


 









 






the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder or
under any other Loan Document, shall thereupon become immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan Document to the contrary
notwithstanding; (iii) require cash collateral as contemplated by Section 2.23(k) in an amount not
exceeding the Letter of Credit Exposure; (iv) exercise any remedies available under the Guarantee
Agreement, the Collateral Documents or otherwise; or (v) any combination of the foregoing;
provided, that, in the case of (A) any of the Events of Default with respect to the
Borrowers described in paragraph (g) or (h) above or (B) the Event of Default specified in
paragraph (p) above, the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder or under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or
in any other Loan Document to the contrary notwithstanding.




ARTICLE VIII




THE ADMINISTRATIVE AGENT AND ISSUING BANK




     SECTION 8.01. Appointment and Authorization.




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




     (b) The Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, and hereby agrees (in the case of clause (ii) below,
at the direction of the Required Lenders), (i) to receive on behalf of the Lenders all
payments of principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each payment so
received; (ii) to give notice on behalf of each of the Lenders to the Borrower of any Event
of Default specified in this Amended Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; (iii) to give notice to the
Lenders of any Event of Default specified in this Amended Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency hereunder;
and (iv) to distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Amended Agreement as received by the
Administrative Agent.




     (c) The Administrative Agent is hereby expressly authorized by each Lender to direct
the Collateral Agent, in the name of and on behalf of such Lender, to release any



 









 






Collateral that is being sold, transferred, leased or otherwise disposed of by the
Borrower or any Subsidiary in a transaction permitted by Section 6.05 or which (subject to
Section 9.08(b)(iv)) is approved by the Required Lenders.



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



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



     SECTION 8.04. Successor Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent, the Administrative Agent and the Issuing Bank



 









 




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




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



     SECTION 8.06. Indemnification. Each Lender agrees (a) to reimburse each of the
Administrative Agent and the Issuing Bank, on demand, in the amount of its pro rata share (as
determined under Section 2.17) of any expenses incurred for the benefit of the Lenders by the
Administrative Agent or the Issuing Bank, as the case may be, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the Lenders, which
shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent, the Issuing Bank and any of their respective directors, officers, employees
or agents, on demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against it in its capacity as the Administrative Agent or the Issuing Bank, as the case
may be, or any of them in any way relating to or arising out of this Amended Agreement or any other
Loan Document or any action taken or omitted by it or any of them under this Amended Agreement or
any other such Loan Document, to the extent the same shall not have been reimbursed by the
Borrower; provided, that, no Lender shall be liable to the Administrative Agent or
the Issuing Bank for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the gross



 









 







negligence or willful misconduct of the Administrative Agent, the Issuing Bank or any of their
respective directors, officers, employees or agents.



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



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



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



ARTICLE IX




MISCELLANEOUS




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




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




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




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


All notices and other communications given to any party hereto in accordance with the provisions of
this Amended Agreement shall be deemed to have been given on the date of receipt if delivered by
hand or overnight courier service or sent by telecopy or on the date three Business


 









 






Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this Section 9.01. In all
events, notice shall be deemed effective immediately upon refusal of delivery thereof irrespective
of the method of such delivery.




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



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




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



     SECTION 9.04. Successors and Assigns.




     (a) The terms and provisions of the Loan Documents shall be binding upon and inure to
the benefit of the Borrowers and the Lenders and their respective successors and assigns
permitted hereby, except that (i) neither Borrower shall have the right to assign its rights
or obligations under the Loan Documents without the prior written consent of each Lender and
(ii) any assignment by any Lender must be made in compliance with Section 9.04(c) and (iii)
transfer by participation must be made in compliance with Section 9.04(b). Any attempted
assignment or transfer by any party not made in compliance with this Section 9.04 shall be
null and void, unless such attempted



 









 






assignment or transfer is treated as a participation in accordance with Section
9.04(b). The parties to this Amended Agreement acknowledge that clause (ii) of this Section
9.04(a) relates only to absolute assignments and this Section 9.04(a) does not prohibit
assignments creating security interests, including, without limitation, (1) any pledge or
assignment by any Lender of all or any portion of its rights under this Amended Agreement
and any Note to a Federal Reserve Bank or (2) in the case of a Lender which is a Fund, any
pledge or assignment of all or any portion of its rights under this Amended Agreement and
any Note to its trustee in support of its obligations to its trustee; provided, however,
that no such pledge or assignment creating a security interest shall release the transferor
Lender from its obligations hereunder unless and until the parties thereto have complied
with the provisions of Section 9.04(c). The Administrative Agent may treat the person which
made any Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such person complies with Section 9.04(c); provided, however, that the
Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another person. Any assignee of the rights to any Loan or
any Note agrees by acceptance of such assignment to be bound by all the terms and provisions
of the Loan Documents. Any request, authority or consent of any person, who at the time of
making such request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and
binding on any subsequent holder or assignee of the rights to such Loan.




     (b) Participations.




     (i) Any Lender may at any time sell to one or more banks or other entities
(“Participants”) participating interests in any Loan and Letter of Credit
Exposure of such Lender, any Note held by such Lender, any Commitment of such Lender
or any other interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such Lender’s
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Loans and Letter of Credit
Exposure and the holder of any Note issued to it in evidence thereof for all
purposes under the Loan Documents, all amounts payable by the Borrowers under this
Amended Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under the Loan Documents.




     (ii) Each Lender shall retain the sole right to approve, without the consent of
any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect to any Loan
or Commitment in which such Participant has an interest which would require consent
of all of the Lenders pursuant to the terms of Section 9.08 or of any other Loan
Document.



 









 






     (iii) The Borrowers agree that each Participant shall be deemed to have the
right of setoff provided in Section 9.06 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided in
Section 9.06 with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 9.06, agrees to
share with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 2.18 as if each
Participant were a Lender. Each Borrower further agrees that each Participant shall
be entitled to the benefits of Sections 2.14, 2.15, 2.16, 2.19 and 2.20 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant
to Section 9.04(c), provided that (i) a Participant shall not be entitled to receive
any greater payment under Section 2.14, 2.15, 2.16 or 2.19 than the Lender who sold
the participating interest to such Participant would have received had it retained
such interest for its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Borrower, and (ii) any
Participant not incorporated under the laws of the United States of America or any
State thereof agrees to comply with the provisions of Section 2.20 to the same
extent as if it were a Lender.




     (c) Assignments.




     (i) Any Lender may at any time assign to one or more banks or other entities
(“Purchasers”) all or any part of its rights and obligations under the Loan
Documents. Such assignment shall be substantially in the form of Exhibit D or in
such other form as may be agreed to by the parties thereto. Each such assignment
with respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an
Approved Fund shall either be in an amount equal to the entire applicable Commitment
and Loans of the assigning Lender or (unless each of the Borrower and the
Administrative Agent otherwise consents) be in an aggregate amount not less than
$5,000,000. The amount of the assignment shall be based on the Commitment or
outstanding Loans (if the Commitment has been terminated) subject to the assignment,
determined as of the date of such assignment or as of the “Trade Date,” if the
“Trade Date” is specified in the assignment




     (ii) The consent of the Borrower shall be required prior to an assignment
becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or an
Approved Fund, provided that the consent of the Borrower shall not be required if a
Default has occurred and is continuing. The consent of the Agent and the Issuing
Bank shall be required prior to any assignment becoming effective. Any consent
required under this Section 9.04(c) shall not be unreasonably withheld or delayed.




     (iii) Upon (A) delivery to the Administrative Agent of an assignment, together
with any consents required by Section 9.04(c), and (B) payment of a



 









 






$4,000 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The assignment shall
contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the
applicable assignment agreement constitutes “plan assets” as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents will
not be “plan assets” under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this Amended
Agreement and any other Loan Document executed by or on behalf of the Lenders and
shall have all the rights and obligations of a Lender under the Loan Documents, to
the same extent as if it were an original party thereto, and the transferor Lender
shall be released with respect to the Commitment and Loans assigned to such
Purchaser without any further consent or action by the Borrowers, the Lenders or the
Administrative Agent. In the case of an assignment covering all of the assigning
Lender’s rights and obligations under this Amended Agreement, such Lender shall
cease to be a Lender hereunder but shall continue to be entitled to the benefits of,
and subject to, those provisions of this Amended Agreement and the other Loan
Documents which survive payment of the Obligations and termination of the applicable
agreement. Any assignment or transfer by a Lender of rights or obligations under
this Amended Agreement that does not comply with this Section 9.04(c) shall be
treated for purposes of this Amended Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 9.04(b).
Upon the consummation of any assignment to a Purchaser pursuant to this Section
9.04(c), the transferor Lender, the Administrative Agent and the Borrowers shall, if
the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such assignment.




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




     (d) The Borrowers authorize each Lender to disclose to any Participant or Purchaser or
any other person acquiring an interest in the Loan Documents by operation



 









 






of law (each a “Transferee”) and any prospective Transferee any and all
information in such Lender’s possession concerning the creditworthiness of the Borrower and
its Subsidiaries, including without limitation any information contained in any Reports;
provided, that each Transferee and prospective Transferee agrees to be bound by Section 9.18
of this Amended Agreement.




     (e) If any interest in any Loan Document is transferred to any Transferee which is not
incorporated under the laws of the United States or any State thereof, the transferor Lender
shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 2.20.



     SECTION 9.05. Expenses; Indemnity.




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




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



 









 






expenses) as they are incurred in connection with the investigation of, preparation for
or defense of any pending or threatened claim or any action or proceeding arising therefrom.
Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this
Section 9.05(b) shall not apply in respect of any loss, claim, damage or liability to the
extent that a court of competent jurisdiction shall have determined by final and
nonappealable judgment that such loss, claim, damage or liability resulted from such
Indemnified Party’s gross negligence or willful misconduct.




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




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




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



 









 






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




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



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



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



 









 





     SECTION 9.08. Waivers; Amendment.




     (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies which they would otherwise have.
No waiver of any provision of this Amended Agreement or any other Loan Document or consent
to any departure by the Borrowers or any other Secured Party therefrom shall in any event be
effective unless the same shall be permitted by Section 9.08(b), and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrowers in any case shall entitle the Borrowers to any
other or further notice or demand in similar or other circumstances.




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



 









 






amendment or modification authorized by this Section 9.08 regardless of whether its
Note shall have been marked to make reference thereto, and any consent by any Lender or
holder of a Note pursuant to this Section 9.08 shall bind any person subsequently acquiring
any Obligation.



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



     SECTION 9.10. Entire Agreement.




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




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



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



     SECTION 9.12. Counterparts. This Amended Agreement may be executed by the parties
hereto in several counterparts and each such counterpart shall be deemed to be an original,
admissible into evidence, but all such counterparts shall together constitute but one and the same
Agreement, and shall become effective as provided in Section 9.03. Delivery of an



 









 







executed counterpart of this Amended Agreement by facsimile shall be equally as effective as
delivery of a manually executed counterpart of this Amended Agreement. Any party delivering an
executed counterpart of this Amended Agreement by facsimile shall also deliver a manually executed
counterpart of this Amended Agreement, but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability, and binding effect of this Amended Agreement.



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



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



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




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




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



 









 






Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.




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




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



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



     SECTION 9.17. Judgment Currency.




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




     (b) If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, such amount
payable by the applicable Loan Party shall be reduced or increased, as



 









 






applicable, such that the amount paid in the Judgment Currency, when converted at the
rate of exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing on the
Judgment Currency Conversion Date.



     SECTION 9.18. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Amended Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such Lender or
to a Transferee, (iii) to regulatory officials, (iv) to any person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender’s direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other professional advisors
to such counterparties, (vii) permitted by Section 9.04(d) and (viii) to rating agencies if
requested or required by such agencies in connection with a rating relating to the Loans hereunder.
Notwithstanding anything herein to the contrary, confidential information shall not include, and
each Lender (and each employee, representative or other agent of any Lender) may disclose to any
and all persons, without limitation of any kind, the “tax treatment” and “tax structure” (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses) that are or have
been provided to such Lender relating to such tax treatment or tax structure; provided that with
respect to any document or similar item that in either case contains information concerning such
tax treatment or tax structure of the transactions contemplated hereby as well as other
information, this sentence shall only apply to such portions of the document or similar item that
relate to such tax treatment or tax structure.



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



ARTICLE X




GUARANTY




     SECTION 10.01. Guaranty of Payment. The Borrower hereby, absolutely, irrevocably and
unconditionally guarantees, as primary obligor and not as surety, the full and punctual payment
(whether at stated maturity, upon acceleration or early termination or otherwise, and at all times
thereafter) and performance of the Obligations of the Subsidiary Borrower, including without
limitation any such Obligations incurred or accrued during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding of the Subsidiary Borrower, whether or not
allowed or allowable in such proceeding (collectively, the “Guaranteed Debt”). Upon
failure by the Subsidiary Borrower to pay punctually any such amount pursuant to this Amended
Agreement



 









 




or to deposit any amount or deliver any cash collateral, execute any documents or take any
other action pursuant to this Amended Agreement or any other Loan Document, the Borrower agrees
that it shall forthwith on demand pay to (or deposit with, as applicable) the Administrative Agent
for the benefit of the Lenders and, if applicable, their Affiliates, the amount not so paid or
deposited at the place and in the manner specified in this Amended Agreement or any other Loan
Document, as the case may be, and shall also execute any documents and take any other action the
Subsidiary Borrower is required to execute or take but has failed to execute or take (it being
understood that the intent hereof is that to the extent that the Subsidiary Borrower shall fail to
provide the Administrative Agent with a perfected first priority security interest in a specified
amount of cash collateral as required hereby, the Borrower shall be obligated to make all deposits,
sign all documents and take all such other actions as may be required to assure the Administrative
Agent such a security interest in such cash collateral). This Guaranty is a guaranty of payment
and not of collection. The Borrower waives any right to require the Administrative Agent or any
Lender to sue the Subsidiary Borrower, any other guarantor, or any other person obligated for all
or any part of the Guaranteed Debt, or otherwise to enforce its payment against any collateral
securing all or any part of the Guaranteed Debt.




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



     SECTION 10.03. Nature of Guaranty; Continuing, Absolute and Unconditional. The
Borrower hereby agrees that, to the fullest extent permitted by law, its obligations hereunder
shall be continuing, absolute and unconditional under any and all circumstances and not subject to
any reduction, limitation, impairment, termination, defense (other than indefeasible payment in
full), setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by
it to the fullest extent permitted by law), whether by reason of any claim of any character
whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or
compromise. The validity and enforceability of this Guaranty shall not be impaired or affected by
any of the following: (a) any extension, modification or renewal of, or indulgence with respect to,
or substitution for, the Guaranteed Debt or any part thereof or any agreement relating thereto at
any time; (b) any failure or omission to perfect or maintain any lien on, or preserve rights to,
any security or collateral or to enforce any right, power or remedy with respect to the Guaranteed
Debt or any part thereof or any agreement relating thereto, or any collateral securing the
Guaranteed Debt or any part thereof; (c) any waiver of any right, power or remedy or of any default
with respect to the Guaranteed Debt or any part thereof or any agreement relating thereto or with
respect to any collateral securing the Guaranteed Debt or any part thereof; (d) any release,
surrender, compromise, settlement, waiver, subordination or modification, with or without
consideration, of any collateral securing the Guaranteed Debt or any part thereof, any other
guaranties with respect to the Guaranteed Debt or any part thereof, or any other obligations of any
person or entity with respect to the Guaranteed Debt or any part thereof; (e) the



 









 







enforceability or validity of the Guaranteed Debt or any part thereof or the genuineness,
enforceability or validity of any agreement relating thereto or with respect to any collateral
securing the Guaranteed Debt or any part thereof; (f) the application of payments received from any
source to the payment of indebtedness other than the Guaranteed Debt, any part thereof or amounts
which are not covered by this Guaranty even though the Lenders might lawfully have elected to apply
such payments to any part or all of the Guaranteed Debt; (g) any change of ownership of the
Subsidiary Borrower or the insolvency, bankruptcy or any other change in the legal status of the
Subsidiary Borrower; (h) any change in, or the imposition of, any law, decree, regulation or other
governmental act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Debt; (i) the failure of the Subsidiary
Borrower to maintain in full force, validity or effect or to obtain or renew when required all
governmental, insurance and other approvals, licenses or consents required in connection with the
Guaranteed Debt, or to take any other action required in connection with the performance of all
obligations pursuant to the Guaranteed Debt; (j) the existence of any claim, setoff or other rights
which the Borrower may have at any time against the Subsidiary Borrower or any other guarantor or
any other person in connection herewith or with any unrelated transaction; (k) any borrowing, use
of cash collateral, or grant of a security interest by the Subsidiary Borrower, as debtor in
possession, under any applicable federal, state or foreign bankruptcy or other similar law; (l) the
disallowance of all or any portion of any of the Lenders’ claims for repayment of the Guaranteed
Debt under any applicable federal, state or foreign bankruptcy or other similar law; or (m) any
other fact or circumstance which might otherwise constitute grounds at law or equity for the
discharge or release of the Borrower from its obligations hereunder, all whether or not the
Borrower shall have had notice or knowledge of any act or omission referred to in the foregoing
clauses (a) through (l) of this paragraph. It is agreed that the Borrower’s liability hereunder is
independent of any other guaranties or other obligations at any time in effect with respect to the
Guaranteed Debt or any part thereof, and that the Borrower’s liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any such other guaranties
or other obligations or any provision of any applicable law or regulation purporting to prohibit
payment by the Subsidiary Borrower of the Guaranteed Debt in the manner agreed upon among the
Administrative Agent, the Lenders and the Borrower.



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



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



 









 







Debt or any part thereof or any other liability of the Subsidiary Borrower to the
Administrative Agent or the Lenders.



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



     SECTION 10.07. Rights to Payments, Etc. In the event that acceleration of the time
for payment of any of the Guaranteed Debt is stayed upon the insolvency, bankruptcy or
reorganization of the Subsidiary Borrower, or otherwise, all such amounts shall nonetheless be
payable by the Borrower forthwith upon demand by the Administrative Agent or the Lenders. The
Borrower further agrees that, to the extent that any other Borrower makes a payment or payments to
any of the Lenders on the Guaranteed Debt (including any payment pursuant to Article VIII),
or the Administrative Agent or the Lenders receive any collateral or proceeds of collateral
securing the Guaranteed Debt, which payment or receipt of proceeds or collateral or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be returned or repaid to such Borrower, its estate, trustee, receiver, debtor in
possession or any other party, including, without limitation, the Borrower, under any insolvency or
bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such
payment, return or repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred.



     SECTION 10.08. No Waiver. No delay on the part of the Administrative Agent or the
Lenders in the exercise of any right, power or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent or the Lenders of any right, power or remedy
shall preclude any further exercise thereof; nor shall any amendment, supplement, modification or
waiver of any of the terms or provisions of this Guaranty be binding upon the Administrative Agent
or the Lenders, except as expressly set forth in a writing duly signed and delivered on the
Lenders’ behalf by the Administrative Agent. The failure by the Administrative Agent or the
Lenders at any time or times hereafter to require strict performance by any Borrower (including,
without limitation, the Borrower hereunder) of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement, agreement, guaranty, instrument or
document now or at any time or times hereafter executed pursuant to the terms of, or in connection
with, this Amended Agreement by any Borrower and delivered to the Administrative Agent or the
Lenders shall not waive, affect or diminish any right



 









 







of the Administrative Agent or the Lenders at any time or times hereafter to demand strict
performance thereof, and such right shall not be deemed to have been waived by any act or knowledge
of the Administrative Agent or the Lenders, their agents, officers or employees, unless such waiver
is contained in an instrument in writing duly signed and delivered on the Lenders’ behalf by the
Administrative Agent. No waiver by the Administrative Agent or the Lenders of any default shall
operate as a waiver of any other default or the same default on a future occasion, and no action by
the Administrative Agent or the Lenders permitted hereunder shall in any way affect or impair the
Administrative Agent’s or the Lenders’ rights or powers, or the obligations of the Borrower under
this Guaranty. Any determination by a court of competent jurisdiction of the amount of any
Guaranteed Debt owing by the Subsidiary Borrower to the Lenders shall be conclusive and binding on
the Borrower irrespective of whether the Borrower was a party to the suit or action in which such
determination was made.



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



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



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



[SIGNATURE PAGE FOLLOWS]




 









 





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



	 	 	 	 	 
	 	 	ROBBINS & MYERS, INC.,
	 	 	as Borrower
	 
	 	 	 	 
	 

	 	By:
	 	/S/ Kevin J. Brown
	 

	 	Name:
	 	Kevin J. Brown
	 

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

	 	By:
	 	/S/ Kevin J. Brown
	 

	 	Name:
	 	Kevin J. Brown
	 

	 	Title:
	 	Attorney-in-Fact pursuant to attached Power-of-Attorney






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]






 









 








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

	 	By:
	 	/S/ Dana E. Jurgens
	 

	 	Name:
	 	Dana E. Jurgens
	 

	 	Title:
	 	Vice President






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]







 









 








	 	 	 	 	 
	 	 	HARRIS N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/S/ Thad D. Rasche
	 

	 	Name:
	 	Thad D. Rasche
	 

	 	Title:
	 	Director
	 

	 	Address:
	 	 111 West Monroe Street
	 

	 	 	 	Chicago, IL 60603
	 

	 	Telephone
	 	: 312-461-5739
	 

	 	Fax:
	 	312-461-2591






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]





 









 








	 	 	 	 	 
	 	 	NATIONAL CITY BANK
	 
	 	 	 	 
	 

	 	By:
	 	/S/ Neal J. Hinker
	 

	 	Name:
	 	Neal J. Hinker
	 

	 	Title:
	 	Senior Vice President
	 

	 	Address:
	 	 6 N. Main St.
	 

	 	 	 	Dayton, Ohio 45412-2200
	 

	 	Telephone
	 	: 937-226-2041
	 

	 	Fax:
	 	937-226-2058






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]







 









 








	 	 	 	 	 
	 	 	FIFTH THIRD BANK
	 
	 	 	 	 
	 

	 	By:
	 	/S/ Michael Lopez
	 

	 	Name:
	 	Michael Lopez
	 

	 	Title:
	 	Assistant Vice President
	 

	 	Address:
	 	 110 North Main Street,
	 

	 	 	 	MD 332921
	 

	 	 	 	Dayton, OH 45402
	 

	 	Telephone
	 	: (937) 227-6656
	 

	 	Fax:
	 	(937) 227-6454






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]





 









 








	 	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/S/ Warren F. Weber
	 

	 	Name:
	 	Warren F. Weber
	 

	 	Title:
	 	Senior Vice President
	 

	 	Address:
	 	 312 Walnut Street
	 

	 	 	 	Cincinnati, OH 45202
	 

	 	Telephone
	 	: 513-929-3423
	 

	 	Fax:
	 	513-929-0923






[Signature Page to Robbins & Myers, Inc.

Fourth Amended and Restated Credit Agreement]





 









 








PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 
	Applicable	 	Level I	 	Level II	 	Level III	 	Level IV
	Margin	 	Status	 	Status	 	Status	 	Status
	LIBOR Loans
	 	1.00%	 	1.20%	 	1.625%	 	2.00%
	ABR Loans
	 	0.00%	 	0.00%	 	0.25%	 	0.50%






	 	 	 	 	 	 	 	 	 
	Applicable Fee	 	Level I	 	Level II	 	Level III	 	Level IV
	Rate	 	Status	 	Status	 	Status	 	Status
	Letter of Credit Fee
	 	1.00%	 	1.20%	 	1.625%	 	2.00%
	Facility Fee
	 	0.25%	 	0.30%	 	0.375%	 	0.50%





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




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



     “Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Consolidated Leverage Ratio (as defined in
the Existing Facility) is less than 2.50 to 1.00.



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



     “Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Consolidated Leverage Ratio is less than 3.50 to 1.00.



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



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



     During the period beginning on the Closing Date and ending on the date of delivery of the
quarterly financial statements for the Borrower’s fiscal quarter ending November 30, 2005, the
Applicable Margin and Applicable Fee Rate shall be based on pricing Level III in the foregoing
table. Thereafter, the Applicable Margin and Applicable Fee Rate shall be determined in accordance
with the foregoing table based on the Borrower’s Status as reflected in the then most recent
Financials. Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be
effective five Business Days after the Administrative Agent has received the applicable Financials.
If the Borrower fails to deliver the Financials to the Agent at the time required pursuant to the
Credit Agreement, then the Applicable Margin and Applicable Fee Rate shall be



 









 







the highest Applicable Margin and Applicable Fee Rate set forth in the foregoing table until
five days after such Financials are so delivered.




2