**TABLE OF CONTENTS**        Page     ARTICLE 1    Definitions    Section 1.1. *Defined Terms*  1 Section 1.2. *Other Interpretive Provisions*  8 Section 1.3. *Accounting Principles*  9      ARTICLE 2    The Term Loan         Section 2.1. *The Term Loan*  9 Section 2.2. *Evidence of Debt*  9 Section 2.3. *Procedure for Borrowing*  10 Section 2.4. *Prepayment*  10 Section 2.5. *Repayment*  10 Section 2.6. *Interest*  10 Section 2.7. *Fees*  10 Section 2.8. *Computation of Interest and Fees*  11 Section 2.9. *Payments by the Company*  11      ARTICLE 3    Taxes, Yield Protection and Illegality         Section 3.1. *Taxes*  12 Section 3.2. *Illegality*  13 Section 3.3. *Increased Costs and Reduction of Return*  14 Section 3.4. *Funding Losses*  15 Section 3.5. *Inability to Determine Rates*  15 Section 3.6. *Certificates of Bank*  16 Section 3.7. *Survival*  16      ARTICLE 4    Conditions Precedent         Section 4.1. *Conditions of Closing Date*  16 
 

 
       Page     ARTICLE 5    Representations and Warranties         Section 5.1. *Corporate Existence and Power*  17 Section 5.2. *Corporate Authorization; No Contravention*  18 Section 5.3. *Governmental Authorization*  18 Section 5.4. *Binding Effect*  18 Section 5.5. *Litigation*  18 Section 5.6. *No Default*  18 Section 5.7. *ERISA*  19 Section 5.8. *Use of Proceeds; Margin Regulations*  19 Section 5.9. *Title to Properties*  19 Section 5.10. *Taxes*  19 Section 5.11. *Environmental Matters*  19 Section 5.12. *Regulated Entities*  20 Section 5.13. *Copyrights, Patents, Trademarks and Licenses, Etc*  20 Section 5.14. *Financial Information*  20      ARTICLE 6    Affirmative Covenants         Section 6.1. *Financial Statements*  20 Section 6.2. *Certificates; Other Information*  21 Section 6.3. *Notices*  21 Section 6.4. *Preservation of Corporate Existence, Etc*  22 Section 6.5. *Insurance*  22 Section 6.6. *Payment of Obligations*  22 Section 6.7. *Compliance with Laws*  22 Section 6.8. *Inspection of Property and Books and Records*  23 Section 6.9. *Use of Proceeds*  23 Section 6.10. *Minimum Net Worth*  23 Section 6.11. *Incorporation by Reference*  23      ARTICLE 7    Negative Covenants         Section 7.1. *Limitation on Liens*  23 Section 7.2. *Disposition of Assets; Consolidations and Mergers*  24 Section 7.3. *Pari Passu Ranking; Benefit of Guarantees and Security*  24 Section 7.4. *Transactions with Affiliates*  24 Section 7.5. *Margin Stock*  24 Section 7.6. *Leverage Ratio*  24 Section 7.7. *Restricted Payments*  25 
 

 
       PageSection 7.8. *Prepayment of Subordinated Notes*  25 Section 7.9. *Incorporation by Reference*  25      ARTICLE 8    Events of Default         Section 8.1. *Event of Default*  25 Section 8.2. *Rights and Remedies*  27 Section 8.3. *Rights Not Exclusive*  27      ARTICLE 9    Miscellaneous         Section 9.1. *Amendments and Waivers*  28 Section 9.2. *Notices*  28 Section 9.3. *No Waiver; Cumulative Remedies*  29 Section 9.4. *Costs and Expenses*  29 Section 9.5. *Indemnity*  29 Section 9.6. *Marshalling; Payments Set Aside*  30 Section 9.7. *Successors and Assigns*  30 Section 9.8. *Assignments*  30 Section 9.9. *Set-off*  30 Section 9.10. *Counterparts*  31 Section 9.11. *Severability*  31 Section 9.12. *No Third Parties Benefited*  31 Section 9.13. *Governing Law and Jurisdiction*  31 Section 9.14. *Waiver of Jury Trial*  32 Section 9.15. *Entire Agreement*  32 
 

 
**Exhibit 10.9**TERM LOAN AGREEMENT     This TERM LOAN AGREEMENT is entered into as of February 16, 2005 by Spartech Corporation, aDelaware corporation (the “Company”) and Calyon New York Branch (the “Bank”).     WHEREAS, the Bank has agreed to make available to the Company a term loan upon the terms andconditions set forth in this Agreement;     NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants containedherein, the parties agree as follows:ARTICLE 1Definitions     Section 1.1. *Defined Terms*. In addition to the terms defined elsewhere in thisAgreement, the following terms have the following meanings:     “**Adjusted LIBOR Rate**” means, with respect to any Interest Period, an interest rate per annum(rounded upwards, if necessary, to the next 1/16th of 1%) equal to (i) the LIBOR Ratefor such Interest Period multiplied by (ii) the Reserve Requirement.     “**Affiliate**” means, as to any Person, (i) any other Person which directly, or indirectlythrough one or more intermediaries, controls such Person, (ii) any other Person which directly, orindirectly through one or more intermediaries, is controlled by, or is under common control with,such Person or (iii) any other Person or which such Person owns, directly or indirectly, 20% ormore of the common stock or equivalent equity interests. As used herein, the term “control” meanspossession, directly or indirectly, of the power to direct or cause the direction of the managementor policies of a Person, whether through the ownership of voting securities, by contract orotherwise.     “**Agreement**” means this Term Loan Agreement, as amended or supplemented from time to time inaccordance with the terms hereof.     “**Applicable Margin**” means, for any day, 1.0% per annum; *provided*, *however*, that if either theLeverage Ratio covenant or Consolidated Net Worth covenant applicable to the Company under theRevolving Credit Agreement is amended or modified, the effect of which is to ease any restricitionimposed thereby, the “Applicable Margin” shall be equal to the greater of (i) 1.0% per annum and(ii) the applicable margin in effect at such time under the Revolving Credit Agreement forEurodollar Rate Loans (as therein defined).     “**Availability Period**” means the period beginning on the Effective Date and ending not morethan 15 days thereafter.
 

 
     “**Bank**” has the meaning specified in the introductory clause hereto.     “**Bankruptcy Code**” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.).     “**Bank’s Payment Office**” means the address for payments specified as such on the signature pagehereto in relation to the Bank or such other address as the Bank may from time to time specify inaccordance with Section 9.2.     “**Business Day**” means any day other than a Saturday, Sunday or other day on which (i)commercial banks in New York City are authorized or required by law to close, (ii) dealings are notcarried on in the London interbank market and (iii) the Trans-European Automated Real-Time GrossSettlement Express Transfer (TARGET) System is not open.     “**Capital Adequacy Regulation**” means any guideline, request or directive of any central bank orother Governmental Authority, or any other law, rule or regulation, whether or not having the forceof law, in each case, regarding capital adequacy of any bank or of any corporation controlling abank.     “**Closing Date**” means the date on which the Term Loan is funded hereunder.     “**Code**” means the Internal Revenue Code of 1986, as amended, and regulations promulgatedthereunder.     “**Company**” has the meaning ascribed to that term in the preamble and recitals hereto.     “**Contingent Obligation**” as to any Person, any guarantee of payment by such Person of anyIndebtedness or other obligation of any other Person, or any agreement to provide financialassurance with respect to the financial condition, or the payment of the obligations of, such otherPerson which has the effect of assuring or holding harmless any third Person against loss withrespect to one or more obligations of such other Person to such third Person; *provided*, *however*,that the term Contingent Obligation shall not include endorsements of instruments for deposit orcollection in the ordinary course of business.     “**Contractual Obligations**” means, as to any Person, any provision of any security issued bysuch Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or otherinstrument, document or agreement to which such Person is a party or by which it or any of itsproperty is bound and which is material to such Person.     “**Controlled Group**” means the Company and all Persons (whether or not incorporated) undercommon control or treated as a single employer with the Company pursuant to Section 414(b), (c),(m) or (o) of the Code.     “**Default**” means any event or circumstance which, with the giving of notice, the lapse of time,or both, would (if not cured or otherwise remedied during such time) constitute an Event ofDefault.     **“Dollar(s)”**means the lawful currency of the United States of America.
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     **“Effective Date”**means the date on which this Agreement is executed by the Company and theBank, but in any event shall be no later than February 28, 2005.     “**EMU Legislation**” means the legislative measures of the European Union for the introductionof, changeover to, or operation of the Euro in one or more member states.     “**Environmental Laws**” means all federal, state or local laws, statutes, common law duties,rules, regulations, ordinances and codes, together with all administrative orders, directed duties,requests, licenses, authorizations and permits of, and agreements with, any GovernmentalAuthorities, in each case relating to environmental, health, safety and land use matters; includingthe Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), theClean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, theFederal Resource Conservation and Recovery Act, the Toxic Substances Control Act and the EmergencyPlanning and Community Right-to-Know Act.     **“Equivalent”**means, as determined by the Bank, the United States Dollar equivalent of anamount expressed in Euro, determined on the basis of the Spot Exchange Rate obtained by the Bank ina commercially reasonable manner.     “**ERISA**” means the Employee Retirement Income Security Act of 1974, as amended from time totime, and regulations promulgated thereunder.     “**ERISA Affiliate**” means any trade or business (whether or not incorporated) under commoncontrol with the Company within the meaning of Section 414(b), 414(c) or 414(m) of the Code.     “**ERISA Event**” means (a) a Reportable Event with respect to a Qualified Plan or a MultiemployerPlan; (b) a withdrawal by the Company or any ERISA Affiliate from a Qualified Plan subject toSection 4063 of ERISA during a plan year in which it was a substantial employer (as defined inSection 4001(a)(2) of ERISA); (c) a complete or partial withdrawal by the Company or any ERISAAffiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, thetreatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or thecommencement of proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan subjectto Title IV of ERISA; (e) a failure by the Company or any member of the Controlled Group to makerequired contributions to a Qualified Plan or Multiemployer Plan; (f) an event or condition whichmight reasonably be expected to constitute grounds under Section 4042 of ERISA for the terminationof, or the appointment of a trustee to administer, any Qualified Plan or Multiemployer Plan; (g)the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but notdelinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; or (h) anapplication for a funding waiver or an extension of any amortization period pursuant to Section 412of the Code with respect to any Plan.     “**Euro**” or “€” means the single currency of the Participating Member States of the EuropeanUnion as constituted by the Treaty on European Union and as referred to in the EMU Legislation.     “**Event of Default**” has the meaning specified in Section 8.1.
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     “**Federal Reserve Board**” means the Board of Governors of the Federal Reserve System, or anyentity succeeding to any of its principal functions.     “**Final Maturity Date**” means the date falling five years after the funding of the Term Loanhereunder, but in any event, no later than March 15, 2010; *provided*that if such date is not aBusiness Day, the “**Final Maturity Date**” shall be the next preceding Business Day.     “**GAAP**” means generally accepted accounting principles set forth from time to time in theopinions and pronouncements of the Accounting Principles Board and the American Institute ofCertified Public Accountants and statements and pronouncements of the Financial AccountingStandards Board (or agencies with similar functions of comparable stature and authority within theaccounting profession), or in such other statements by such other entity as may be in general useby significant segments of the U.S. accounting profession, which are applicable to thecircumstances as of the date of determination.     “**Governmental Authority**” means any nation or government, any state or other politicalsubdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, anyentity exercising executive, legislative, judicial, regulatory or administrative functions of orpertaining to government.     “**Indebtedness**” of any Person at any date: (a) all indebtedness of such Person for borrowedmoney or for the deferred purchase price of property or services (other than current tradeliabilities incurred in the ordinary course of business and payable in accordance with customarypractices), (b) any other indebtedness which is evidenced by a note, bond, debenture or similarinstrument, (c) all capital lease obligations of such Person, (d) all obligations of such Person inrespect of outstanding letters of credit, acceptances and similar obligations created for theaccount of such Person, (e) all liabilities secured by any Lien on any property owned by suchPerson even though such Person has not assumed or otherwise become liable for the payment thereof,(f) all Contingent Obligations of such Person and (g) net liabilities of such Person under interestrate cap agreements, interest rate swap agreements, foreign currency exchange agreements and otherhedging agreements or arrangements (calculated on a basis satisfactory to the Bank and inaccordance with accepted industry practice). The Indebtedness of any Person shall include anyIndebtedness of any partnership in which such Person is the general partner.     “**Indemnified Person**” has the meaning specified in subsection 9.5.     “**Indemnified Liabilities**” has the meaning specified in subsection 9.5.     “**Insolvency Proceeding**” means (a) any case, action or proceeding before any court or otherGovernmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for thebenefit of creditors, composition, marshalling of assets for creditors, or other, similararrangement in respect of its creditors generally or any substantial portion of its creditors; ineach case (a) and (b) undertaken under U.S. Federal, State or foreign law, including the BankruptcyCode.
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     “**Interest Payment Date**” means the last day of each Interest Period; *provided*that for InterestPeriods of more than three months’ duration, “Interest Payment Date” shall mean the end of eachthree month period.     “**Interest Period**” means the period commencing on the date the Term Loan is made or renewed, asthe case may be, and ending on the numerically corresponding day on the date which is one, two,three or six months thereafter; *provided*that (a) each such Interest Period which commences on thelast Business Day of a calendar month (or on any day for which there is no numericallycorresponding day in the last calendar month of such Interest Period) shall end on the lastBusiness Day of the last calendar month of such Interest Period and (b) if any Interest Periodwould end on a day other than a Business Day, such Interest Period shall be advanced to end on thenext preceding Business Day.     “**Lending Office**” means the office or offices of the Bank as the Bank may from time to timespecify as its “Lending Office” by notice to the Company.     **“LIBOR Rate”**means with respect to each day during each Interest Period, the rate per annumdetermined on the basis of the rate for deposits in Euro for a period equal to such Interest Periodcommencing on the first day of such Interest Period appearing on Page 3750 of the Telerate screenas of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period.In the event that such rate does not appear on Page 3750 of the Telerate screen (or otherwise onsuch screen), the “LIBOR Rate” for purposes of this definition shall be determined by reference tosuch other comparable publicly available service for displaying eurodollar rates as may be selectedby the Bank.     “**Lien**” any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien(statutory or other), other charge or security interest or any preference, priority or otheragreement or preferential arrangement of any kind or nature whatsoever (including, withoutlimitation, any conditional sale or other title retention agreement or any capital lease obligationhaving substantially the same economic effect as any of the foregoing).     “**Loan Documents**” means this Agreement and all other documents delivered to the Bank by theCompany in connection herewith and therewith.     “**Margin Stock**” means “margin stock” as such term is defined in Regulation T, U or X of theFederal Reserve Board.     “**Material Adverse Effect**” means (a) a material adverse change in, or a material adverse effectupon, the business, assets, liabilities (actual or contingent), operations, condition (financial orotherwise) or prospects of the Company or the Company and its Subsidiaries taken as a whole; or (b)a material adverse effect upon the legality, validity, binding effect or enforceability of thisAgrement or any other Loan Document, or on the ability of the Company to perform its obligationshereunder or thereunder.     “**Multiemployer Plan**” means a “multiemployer plan” (within the meaning of Section 4001(a)(3) ofERISA) and to which any member of the Controlled Group makes, is making, or is
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obligated to make contributions or, during the preceding three calendar years, has made, orbeen obligated to make, contributions.     “**Obligations**” means the Term Loan and all other advances, debts, liabilities, obligations,covenants and duties owing by the Company to the Bank or any other Person required to beindemnified, that arises under any Loan Document, whether or not for the payment of money, whetherarising by reason of an extension of credit, loan, guaranty, indemnification or in any othermanner, whether direct or indirect (including those acquired by assignment), absolute orcontingent, due or to become due, now existing or hereafter arising and however acquired.     “**Ordinary Course of Business**” means, in respect of any transaction involving the Company orany Subsidiary of the Company, the ordinary course of such Person’s business, as conducted by anysuch Person and undertaken by such Person in good faith and not for purposes of evading anycovenant or restriction in any Loan Document.     “**Organization Documents**” means, for any corporation, the certificate or articles ofincorporation, the bylaws, any certificate of determination or instrument relating to the rights ofpreferred shareholders of such corporation and any shareholder rights agreement.     “**Other Taxes**” has the meaning specified in subsection 3.1(b).     “**PBGC**” means the Pension Benefit Guaranty Corporation or any entity succeeding to any of itsprincipal functions under ERISA.     “**Person**” means an individual, partnership, corporation, business trust, limited liabilitycompany, joint stock company, trust, unincorporated association, joint venture or GovernmentalAuthority.     “**Plan**” means a Multiemployer Plan or a Qualified Plan.     “**Prepayment Fee**” has the meaning specified in Section 2.7     “**Property**” means any estate or interest in any kind of property or asset, whether real,personal or mixed, and whether tangible or intangible.     “**Qualified Plan**” means a pension plan intended to be tax-qualified under Section 401(a) of theCode, which is subject to Title IV of ERISA and which any member of the Controlled Group sponsors,maintains, or to which it makes, is making or is obligated to make contributions, or in the case ofa multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at anytime during the immediately preceding period covering at least five (5) plan years, but excludingany Multiemployer Plan.     “**Reportable Event**” means, as to any Plan, (a) any of the events set forth in Section 4043(b)of ERISA or the regulations thereunder, other than any such event for which the 30-day noticerequirement under ERISA has been waived in regulations issued by the PBGC, (b) a withdrawal from aPlan described in Section 4063 of ERISA, or (c) a cessation of operations described in Section4062(e) of ERISA.
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     “**Requirement of Law**” means, as to any Person, any law (statutory or common), treaty, rule orregulation or determination of an arbitrator or of a Governmental Authority, in each caseapplicable to or binding upon the Person or any of its property or to which the Person or any ofits property is subject.     “**Reserve Requirement**” means the aggregate of the maximum reserve percentages (including anymarginal, special, emergency or supplemental reserves) expressed as a decimal established by theBoard of Governors of the Federal Reserve System to which the Bank is subject for eurocurrencyfunding (currently referred to as “Eurocurrency Liabilities” in Regulation D of said Board). Suchreserve percentages shall include those imposed pursuant to such Regulation D. The Term Loan,based upon the Adjusted LIBOR Rate, shall be deemed to constitute eurocurrency funding and to besubject to such reserve requirements without benefit of or credit for proration, exemptions oroffsets that may be available from time to time to the Bank under such Regulation D or anycomparable regulation. The Reserve Requirement shall be adjusted automatically on and as of theeffective date of any change in any reserve percentage.     “**Responsible Officer**” means the chief executive officer, any vice chairman, the president, thechief financial officer, the treasurer or any senior vice president of the Company.     “**Restricted Payment**” means (i) any dividend or other distribution on any shares of theCompany’s capital stock (except dividends payable solely in shares of its capital stock) or (ii)any payment on account of the purchase, redemption, retirement or acquisition of any shares of theCompany’s capital stock (except shares acquired upon the conversion thereof into other shares ofits capital stock).     **“Revolving Credit Agreement”**means the Third Amended and Restated Credit Agreement dated as ofMarch 3, 2004, among, *inter alia*, the Company, the lenders party thereto and Bank of America, N.A.,as administrative agent, as the same may be amended or supplemented hereafter, and anysubstitutions or replacements thereof.     **“Spot Exchange Rate”**means the currency exchange rate at the time at which such rate is to bedetermined for Euro in good faith and in a commercially reasonable manner by Lender.     **“Subordinated Notes”**means the 2014 Preferred Securities, the 2015 Preferred Securities, the2014 Debentures and the 2015 Debentures..     “**Subsidiary**” of a Person means any corporation, association, partnership, joint venture orother business entity of which more than 51% of the voting stock or other equity interests (in thecase of Persons other than corporations), is owned or controlled directly or indirectly by thePerson, or one or more of the Subsidiaries of the Person, or a combination thereof.     “**Substitute Rate**” has the meaning specified in subsection 3.2(c).     “**Taxes**” has the meaning specified in subsection 3.1(a).     “**Term Loan**” has the meaning ascribed to that term in Section 2.1.
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     “**Unfunded Pension Liabilities**” means the excess of a Plan’s benefit liabilities under Section4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance withthe assumptions used by the Plan’s actuaries for funding the Plan pursuant to Section 412 of theCode for the applicable plan year.     “**United States**” and “**U.S.**” each means the United States of America.     **“Upfront Fee”**has the meaning ascribed to that term in Section 2.7(b).     “**Withdrawal Liabilities**” means, as of any determination date, the aggregate amount of theliabilities, if any, pursuant to Section 4201 of ERISA if the Controlled Group made a completewithdrawal from all Multiemployer Plans and any increase in contributions pursuant to Section 4243of ERISA.     Section 1.2. *Other Interpretive Provisions*.     (a) *Defined Terms*. Unless otherwise specified herein, capitalized terms used herein and nototherwise defined shall have the meaning ascribed thereto in the Revolving Credit Agreement(including, without limitation, for purposes of calculating compliance with Sections 6.10 and 7.6and of this Agreement) or in any certificate or other document made or delivered pursuant hereto,as applicable. The meaning of defined terms shall be equally applicable to the singular and pluralforms of the defined terms.     (b) *The Agreement*. The words “hereof”, “herein”, “hereunder” and words of similar import whenused in this Agreement shall refer to this Agreement as a whole and not to any particular provisionof this Agreement; and subsection, section, schedule and exhibit references are to this Agreementunless otherwise specified.     (c) *Certain Common Terms*.     (i) The term “documents” includes any and all instruments, documents, agreements,certificates, indentures, notices and other writings, however evidenced.     (ii) The term “including” is not limiting and means “including without limitation.”     (d) *Performance; Time*. Whenever any performance obligation hereunder shall be stated to bedue or required to be satisfied on a day other than a Business Day, such performance shall be madeor satisfied on the next succeeding Business Day. In the computation of periods of time from aspecified date to a later specified date, the word “from” means “from and including”; the words“to” and “until” each mean “to but excluding”, and the word “through” means “to and including.” Ifany provision of this Agreement refers to any action taken or to be taken by any Person, or whichsuch Person is prohibited from taking, such provision shall be interpreted to encompass any and allmeans, direct or indirect, of taking, or not taking, such action.     (e) *Contracts*. Unless otherwise expressly provided herein, references to agreements and othercontractual instruments shall be deemed to include all subsequent amendments and
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other modifications thereto, but only to the extent such amendments and other modifications are notprohibited by the terms of any Loan Document.     (f) *Laws*. References to any statute or regulation are to be construed as including allstatutory and regulatory provisions consolidating, amending, replacing, supplementing orinterpreting the statute or regulation.     (g) *Captions*. The captions and headings of this Agreement are for convenience of referenceonly and shall not affect the interpretation of this Agreement.     (h) *Independence of Provisions*. The parties acknowledge that this Agreement and other LoanDocuments may use several different limitations, tests or measurements to regulate the same orsimilar matters, and that such limitations, tests and measurements are cumulative and must each beperformed, except as expressly stated to the contrary in this Agreement.     Section 1.3. *Accounting Principles*. (a) Unless the context otherwise clearlyrequires, all accounting terms not expressly defined herein shall be construed, and all financialcomputations required under this Agreement shall be made, in accordance with GAAP; *provided*, thatif the Company requests an amendment to any provisions hereof to eliminate the effect of any changeoccurring after the date hereof in GAAP or in the application thereof on the operation of suchprovision (or if the Bank notifies the Company that it requests an amendment to any provisionhereof for such purpose), regardless of whether any such notice is given before or after suchchange in GAAP or in the application thereof, then such provision shall be interpreted on the basisof GAAP as in effect and applied immediately before such change shall have become effective untilsuch notice shall have been withdrawn or such provision amended in accordance herewith.     (b) References herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods ofthe Company.ARTICLE 2THE TERM LOAN     Section 2.1. *Term Loan.*Subject to the terms and conditions hereof, the Bank agreesto make a term loan (the “**Term Loan**”) to the Company during the Availability Period in a singleadvance in the principal amount of not more than Twenty Million Euro (€20,000,000). Amountsrepaid or prepaid in respect of the principal of the Term Loan may not be reborrowed.     Section 2.2. *Evidence of Debt.*The Bank shall maintain in accordance with its usualpractice an account or accounts evidencing the indebtedness of the Company to the Bank resultingfrom the Term Loan, including the amounts of principal and interest payable and paid to the Bankfrom time to time hereunder. The entries made in any such accounts shall, to the extent permittedby applicable law, be primafacie evidence of the existence and amounts of the
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obligations of the Company therein recorded; *provided*, *however*, that the failure of the Bankto maintain any such account, or any error therein, shall not in any manner affect the obligationof the Company to repay (with applicable interest) the Term Loan made to the Company by the Bank inaccordance with the terms of this Agreement. The Company agrees that, upon the Bank’s request, theCompany will execute and deliver to the Bank a promissory note in form and substance reasonablysatisfactory to the Bank and consistent with the terms of this Agreement.     Section 2.3. *Procedure for Borrowing*. The Borrowing of the Term Loan shall be madeupon the Company’s irrevocable written notice delivered to the Bank in accordance with Section 9.2,which notice must be received by the Bank prior to 11:00 a.m. (New York time) three Business Daysprior to the requested date of such borrowing specifying the amount of such Loan to be borrowed andthe applicable Interest Period.     Section 2.4. *Prepayment.*The Term Loan may be prepaid at any time in whole or inpart without premium or penalty, subject to compliance with Sections 2.7 and 3.4 hereof; *provided*,*however*that partial prepayments shall be in integral amounts of €500,000. The Company shallgive the Bank written notice of such intended prepayment in accordance with Section 9.2 not lessthan two (2) Business Days prior to the date of prepayment. Once given, such notice of prepaymentshall be irrevocable.     Section 2.5. *Repayment.*The Company agrees to repay the Term Loan in full on theFinal Maturity Date.     Section 2.6. *Interest.*(a) Subject to Section 2.6(c), interest shall accrue on theoutstanding principal amount of the Term Loan for the period from and including the date thereof tobut excluding the date the Term Loan is due at the Adjusted LIBOR Rate for each Interest Periodplus the Applicable Margin.     (b) Interest on the Term Loan shall be paid in arrears on each Interest Payment Date.Interest shall also be paid upon payment or prepayment of the Term Loan and, during the existenceof any Event of Default, interest shall be paid on demand.     (c) While any Event of Default exists or after acceleration, the Company shall pay interest(after as well as before entry of judgment thereon to the extent permitted by law) on the principalamount of all Obligations due and unpaid, at a rate per annum equal to 2% per annum above theAdjusted LIBOR Rate plus the Applicable Margin.     (d) Anything herein to the contrary notwithstanding, the obligations of the Company hereundershall be subject to the limitation that payments of interest shall not be required, for any periodfor which interest is computed hereunder, to the extent (but only to the extent) that contractingfor or receiving such payment by the Bank would be contrary to the provisions of any law applicableto the Bank limiting the highest rate of interest which may be lawfully contracted for, charged orreceived by the Bank, and in such event the Company shall pay the Bank interest at the highest ratepermitted by applicable law.     Section 2.7. *Fees.*(a) Upon any prepayment of any portion of the Term Loan asprovided in Section 2.4 which occurs prior to the date that is six (6) months after the Closing
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Date, the Company shall pay to the Bank a prepayment fee (the “**Prepayment Fee**”) equal to 0.2%of the amount so prepaid.     (b) The Company shall pay to the Bank on or before the Closing Date an upfront fee (the“**Upfront Fee**”) calculated as of the Effective Date and equal to (i) .25% per annum multiplied by(ii) the US Dollar Equivalent of €20,000,000, which fee shall be non-refundable and deemedfully earned when paid.     Section 2.8. *Computation of Interest and Fees*. (a) All computations of interest andfees under this Agreement shall be made on the basis of a 360-day year and actual days elapsed.Interest and fees shall accrue during each period during which interest or such fees are computedfrom the first day thereof to the last day thereof.     (b) The Bank will, with reasonable promptness, notify the Company of each determination of aLIBOR Rate; *provided*that any failure to do so shall not relieve the Company of any liabilityhereunder or provide the basis for any claim against the Bank. Any change in the interest rate onthe Term Loan resulting from a change in the Reserve Requirement shall become effective and shallapply thereto as of the opening of business on the day on which such change becomes effective. TheBank will with reasonable promptness notify the Company of the effective date and the amount ofeach such change, *provided*that any failure to do so shall not relieve the Company of any liabilityhereunder or provide the basis for any claim against the Bank.     (c) Each determination of an interest rate by the Bank pursuant hereto shall be conclusive andbinding on the Company in the absence of manifest error. The Bank will, at the request of theCompany, deliver to the Company or the Bank, as the case may be, a statement showing the quotationsused by the Bank in determining any interest rate.     Section 2.9. *Payments by the Company*. (a) All payments (including prepayments) tobe made by the Company on account of principal, interest, fees and other amounts required hereundershall be made without set-off, recoupment or counterclaim; shall, except as otherwise expresslyprovided herein, be made to the Bank at the Bank’s Payment Office, and shall be made in Euro and inimmediately available funds, no later than 5:00 p.m. (New York time) on the date specified herein.Any payment which is received by the Bank later than 5:00 p.m. (New York time) shall be deemed tohave been received on the immediately succeeding Business Day and any applicable interest or feeshall continue to accrue.     (b) Whenever any payment hereunder shall be stated to be due on a day other than a BusinessDay, such payment shall be made on the next succeeding Business Day, and such extension of timeshall in such case be included in the computation of interest or fees, as the case may be; subjectto the provisions set forth in the definition of “Interest Period” herein.
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ARTICLE 3Taxes, Yield Protection and Illegality     Section 3.1. *Taxes*. (a) Subject to subsection 3.1(g), any and all payments by theCompany to the Bank under this Agreement shall be made free and clear of, and without deduction orwithholding for, any and all present or future taxes, levies, imposts, deductions, charges orwithholdings, and all liabilities with respect thereto, excluding such taxes (including incometaxes or franchise taxes) as are imposed on or measured by the Bank’s net income by GovernmentalAuthority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings andliabilities being hereinafter referred to as “**Taxes**”).     (b) In addition, the Company shall pay any present or future stamp or documentary taxes or anyother excise or property taxes, charges or similar levies which arise from any payment madehereunder or from the execution, delivery or registration of, or otherwise with respect to, thisAgreement or any other Loan Documents (hereinafter referred to as “**Other Taxes**”). If the Bankbecomes aware of the imposition of Other Taxes, it shall promptly notify the Company thereof.     (c) Subject to subsection 3.1(g), the Company shall indemnify and hold harmless the Bank forthe full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by anyjurisdiction on amounts payable under this Section 3.1) paid by the Bank and any liability(including penalties, interest, additions to tax and expenses) arising therefrom or with respectthereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Paymentunder this indemnification shall be made within 30 days from the date the Bank makes written demandtherefor.     (d) If the Company shall be required by law to deduct or withhold any Taxes or Other Taxesfrom or in respect of any sum payable hereunder to the Bank, then, subject to subsection 3.1(g):     (i) the sum payable shall be increased as necessary so that after making all requireddeductions (including deductions applicable to additional sums payable under this Section3.1) the Bank receives an amount equal to the sum it would have received had no suchdeductions been made;     (ii) the Company shall make such deductions; and     (iii) the Company shall pay the full amount deducted to the relevant taxation authorityor other authority in accordance with applicable law.     (e) Within 30 days after the date of any payment by the Company of Taxes or Other Taxes, theCompany shall furnish to the Bank evidence of payment satisfactory to the Bank.
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     (f) The Bank agrees to deliver to the Company at the time or times prescribed by applicablelaw such properly completed and executed documentation prescribed by applicable law or reasonablyrequested by the Company as will permit payments under this Agreement and the other Loan Documentsto be made without withholding or at a reduced rate     (g) The Company will not be required to pay any additional amounts in respect of United StatesFederal income tax pursuant to subsection 3.1(d) to the Bank for the account of any Lending Officeof the Bank if the obligation to pay such additional amounts would not have arisen but for afailure by the Bank to comply with its obligations under subsection 3.1(f);     (h) If the Company is required to pay additional amounts to the Bank pursuant to subsection3.1(b) or 3.1(d), then the Bank shall use its reasonable best efforts (consistent with legal andregulatory restrictions) to change the jurisdiction of its Lending Office or to take otherreasonable action so as to eliminate any such additional payment by the Company which maythereafter accrue if such change or action in the judgment of the Bank is not otherwisedisadvantageous to the Bank.     Section 3.2. *Illegality*. (a) If the Bank shall reasonably determine, based upon theadvice of its counsel, that the introduction of any Requirement of Law, or any change in anyRequirement of Law or in the interpretation or administration thereof, has made it unlawful, orthat any central bank or other Governmental Authority has asserted that it is unlawful, for theBank or its Lending Office to make the Term Loan based upon the LIBOR Rate, then, on notice thereofby the Bank to the Company, the obligation of the Bank to make the Term Loan shall be suspendeduntil the Bank shall have notified the Company that the circumstances giving rise to suchdetermination no longer exist.     (b) If the Bank shall reasonably determine, based upon the advice of its counsel, that it isunlawful to maintain the Term Loan based upon the LIBOR Rate, then, on notice thereof by the Bankto the Company, the Company shall, subject to any election under subsection 3.2(d), prepay the TermLoan then outstanding in full, together with interest accrued thereon, either on the last day ofthe current Interest Period thereof if the Bank may lawfully continue to maintain the Term Loan tosuch day, or immediately, if the Bank may not lawfully continue to do so, together with any amountsrequired to be paid in connection therewith pursuant to Section 3.4.     (c) *Intentionally Omitted*.     (d) If the obligation of the Bank to make the Term Loan based upon the LIBOR Rate has beensuspended as provided in subsection 3.2(a) or 3.2(b), the Company may elect, by giving notice tothe Bank that the Term Loan shall be instead be made initially or maintained, as the case may be,as a loan that accrues interest at a rate that reflects, as closely as practicable, the Bank’s costof funds (the “**Substitute Rate**”), plus the Applicable Margin.     (e) If the Company elects pursuant to subsection 3.2(d) to borrow or maintain the Term Loan atthe Substitute Rate, plus the Applicable Margin, such loan shall continue as such unless and untilthe Bank shall notify the Company that the condition or conditions that gave rise to suchrequirement or election have ceased to exist and that such loan may be made or maintained at theLIBOR Rate. Upon the giving of such notice by the Bank to the Company, the Company
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shall prepay in full such Substitute Rate Loan then outstanding, together with interestaccrued thereon, and, concurrently with such prepayment, the Company shall borrow from the Bank, inthe amount of such repayment, a loan based upon the LIBOR Rate.     (f) Before giving any notice to the Company pursuant to this Section 3.2, the Bank shalldesignate a different Lending Office with respect to the Term Loan if such designation will avoidthe need for giving such notice or making such demand and will not, in the judgment of the Bank, beillegal or otherwise disadvantageous to the Bank.     Section 3.3. *Increased Costs and Reduction of Return*. (a) If after the date hereofthe Bank shall reasonably determine that, due to and as a direct result of either (i) theintroduction of or any change (other than any change by way of imposition of or increase in reserverequirements included in the calculation of Adjusted LIBOR Rate) in or in the interpretation ofany law or regulation or (ii) the compliance with any guideline or request from any central bank orother Governmental Authority (whether or not having the force of law), there shall be any increasein the cost to the Bank of agreeing to make or making, funding or maintaining the Term Loan, thenthe Company shall be liable for, and shall from time to time, upon demand therefor by the Bank, payto the Bank, additional amounts as are sufficient to compensate the Bank for such increased costs.     (b) If after the date hereof the Bank shall have reasonably determined that (i) theintroduction of any Capital Adequacy Regulation, (ii) any change in any Capital AdequacyRegulation, (iii) any change in the interpretation or administration of any Capital AdequacyRegulation by any central bank or other Governmental Authority charged with the interpretation oradministration thereof, or (iv) compliance by the Bank (or its Lending Office) or any corporationcontrolling the Bank, with any Capital Adequacy Regulation, affects or would affect the amount ofcapital required or expected to be maintained by the Bank or any corporation controlling the Bankand (taking into consideration the Bank’s or such corporation’s policies with respect to capitaladequacy and the Bank’s desired return on capital) determines that the amount of such capital isincreased as a consequence of the Term Loan, credits or obligations under this Agreement, then,upon demand of the Bank, the Company shall upon demand pay to the Bank, from time to time asspecified by the Bank, additional amounts sufficient to compensate the Bank for such increase.     (c) If the Company is required to pay additional amounts to the Bank pursuant to subsection3.3(a) or (b), then the Bank shall use its reasonable efforts (consistent with legal and regulatoryrestrictions) to designate a different Lending Office so as to eliminate any such additionalpayment by the Company which may thereafter accrue if such change in the judgment of the Bank isnot otherwise disadvantageous to the Bank.     (d) Notwithstanding anything in this Section 3.03 to the contrary, if the Bank fails to notifythe Company of any event which will entitle the Bank to compensation pursuant to this Section 3.03within 180 days after the Bank obtains knowledge of such event, then the Bank shall not be entitledto any compensation from the Company for any such increased cost or reduction of return arisingprior to the date which is 180 days before the date on which the Bank notifies the Company of suchevent.
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     Section 3.4. *Funding Losses*. The Company agrees to reimburse the Bank and to holdthe Bank harmless from any loss or out-of-pocket expense which the Bank may sustain or incur as adirect consequence of:     (a) the failure of the Company to make on a timely basis any payment of principal in respectof the Term Loan (for so long as the interest rate pertaining thereto is the LIBOR Rate),including payments made after any acceleration thereof;     (b) the failure of the Company to borrow the Term Loan after the Company has given a notice ofborrowing or is required to borrow such Term Loan;     (c) the failure of the Company to prepay the Term Loan (in whole or in part) based upon theLIBOR Rate after the Company has given a notice in accordance with Section 2.4;     (d) any principal payment or prepayment in respect of the Term Loan based upon the LIBOR Rateon a day which is not the last day of the Interest Period with respect thereto; or     (e) the conversion pursuant to Section 3.2(d) of the Term Loan based upon the LIBOR Rate tothe Term Loan based upon the Substitute Rate on a day that is not the last day of the respectiveInterest Period;including any such loss or expense arising from the liquidation or reemployment of funds obtainedby it to maintain such Term Loan hereunder or from standard fees payable to terminate the depositsfrom which such funds were obtained. Solely for purposes of calculating amounts payable by theCompany to the Bank under this Section 3.4, such Term Loan (and each related reserve, specialdeposit or similar requirement) shall be conclusively deemed to have been funded at the LIBOR Rateused in determining the Adjusted LIBOR Rate for such Term Loan by a matching deposit or otherborrowing in the European interbank market for a comparable amount and for a comparable period,whether or not such Term Loan is in fact so funded.     Section 3.5. *Inability to Determine Rates*. If the Bank shall have determined (i)that for any reason adequate and reasonable means do not exist for ascertaining the LIBOR Rate forany Interest Period or (ii) that the LIBOR Rate applicable pursuant to subsection 2.6(a) for anyInterest Period does not adequately and fairly reflect the cost to the Bank of funding the TermLoan, the Bank will forthwith give notice of such determination to the Company. Thereafter, theobligation of the Bank to make or maintain the Term Loan hereunder shall be suspended until theBank revokes such notice in writing. If the Term Loan has not then been made, the Company mayelect, by giving notice to the Bank, that such Term Loan shall be instead be made based upon theSubstitute Rate, plus the Applicable Margin. If the Term Loan is then outstanding based upon theLIBOR Rate, the Company shall prepay in full (without any liability for a Prepayment Fee) such TermLoan then outstanding, together with interest accrued thereon, on the last day of the currentInterest Period thereof, and, concurrently with such prepayment, the Company may elect to borrowfrom the Bank, in the amount of such repayment, the Term Loan based upon the Substitute Rate. Ifthe Company elects pursuant to this Section 3.5, to borrow based upon the Substitute Rate, it shallcontinue as such unless and until the Bank shall notify the Company that the condition orconditions that gave rise to such requirement or election have ceased to exist and that the TermLoan may be made or maintained based upon the LIBOR Rate.
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Upon the giving of such notice by the Bank to the Company, the Company shall prepay in full(without any liability for a Prepayment Fee) such Substitute Rate Loan then outstanding, togetherwith interest accrued thereon, and, concurrently with such prepayment, the Company may elect toborrow from the Bank, in the amount of such repayment, the Term Loan based upon the LIBOR Rate.     Section 3.6. *Certificates of Bank*. If the Bank claims reimbursement or compensationpursuant to this Article 3 it shall deliver to the Company a certificate setting forth inreasonable detail the basis for and the computation of the amount payable to the Bank hereunder andsuch certificate shall be conclusive and binding on the Company in the absence of manifest error.     Section 3.7. *Survival*. The agreements and obligations of the Company in thisArticle 3 shall survive the payment of all Obligations and termination of this Agreement and anyother Loan Document.ARTICLE 4Conditions Precedent     Section 4.1. *Conditions of Closing Date*. The obligation of the Bank to make theinitial Loan hereunder is subject to the condition that the Bank shall have received on or beforethe Closing Date (i) the Upfront Fee and (ii) all of the following, in form and substancesatisfactory to the Bank:     (a) *Term Loan Agreement*. This Agreement duly executed by the Company and the Bank;     (b) *Resolutions; Incumbency*.     (i) Copies of the resolutions of the board of directors of the Company approving andauthorizing the execution, delivery and performance by the Company of this Agreement and theother Loan Documents to be delivered hereunder, and authorizing the borrowing of the TermLoan, certified as of the Closing Date by the Secretary or an Assistant Secretary of theCompany; and     (ii) A certificate of the Secretary or Assistant Secretary of the Company, certifyingthe names and true signatures of the officers of the Company authorized to execute, deliverand perform, as applicable, this Agreement, and all other Loan Documents to be deliveredhereunder;     (c) *Articles of Incorporation; By-laws and Good Standing*. Each of the following documents:     (i) the articles or certificate of incorporation of the Company as in effect on theClosing Date, certified by the Secretary or Assistant Secretary of the Company as of theClosing Date, and the bylaws of the Company as in effect on the Closing Date, certified bythe Secretary or Assistant Secretary of the Company as of the Closing Date; and
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     (ii) a good standing certificate for the Company from the Secretary of State (orsimilar, applicable Governmental Authority) of its state of incorporation as of a recentdate, together with a bring-down certificate by facsimile, dated the Closing Date;     (d) *Legal Opinions*. A legal opinion of counsel of the Company, addressed to the Bank, in formand substance satisfactory to the Bank;     (e) *Certificate*. A certificate signed by a Responsible Officer, dated as of the Closing Date,stating that:     (i) the representations and warranties contained in Article 5 are true and correct onand as of such date, as though made on and as of such date;     (ii) no Default or Event of Default exists; and     (iii) since October 30, 2004, there has not been a Material Adverse Effect; and     (f) *Borrowing Notice*. A notice of borrowing of the Term Loan as and when contemplated bySection 2.3.     (g) *Other Documents*. Such other approvals, opinions, documents or materials as the Bank mayreasonably request.ARTICLE 5Representations and Warranties     The Company represents and warrants to the Bank that:     Section 5.1. *Corporate Existence and Power*. The Company:     (a) is a corporation duly organized, validly existing and in good standing under the laws ofthe jurisdiction of its incorporation;     (b) has the power and authority and all material governmental licenses, authorizations,consents and approvals to own its assets, carry on its business and to execute, deliver, andperform its obligations under, the Loan Documents;     (c) is duly qualified as a foreign corporation, and licensed and in good standing, under thelaws of each jurisdiction where its ownership, lease or operation of property or the conduct of itsbusiness requires such qualification or license and the failure to be so qualified or licensedcould have or cause a Material Adverse Effect; and
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     (d) is in compliance with all Requirements of Law; except, in each case referred to in clause(c) or clause (d), to the extent that the failure to do so could not reasonably be expected to havea Material Adverse Effect.     Section 5.2. *Corporate Authorization; No Contravention*. The execution, delivery andperformance by the Company of this Agreement, and any other Loan Document to which it is a party,have been duly authorized by all necessary corporate action, and do not and will not:     (a) contravene the terms of its Organization Documents;     (b) conflict with or result in any breach or contravention of, or the creation of any Lienunder, any document evidencing any Contractual Obligation to which it is a party or any order,injunction, writ or decree of any Governmental Authority to which its Properties is subject; or     (c) violate any Requirement of Law.     Section 5.3. *Governmental Authorization*. No approval, consent, exemption,authorization, or other action by, or notice to, or filing with, any Governmental Authority isnecessary or required in connection with the execution, delivery or performance by, or enforcementagainst, the Company of this Agreement or any other Loan Document.     Section 5.4. *Binding Effect*. This Agreement and each other Loan Document to whichthe Company is a party constitute the legal, valid and binding obligations of the Company,enforceable against the Company in accordance with their respective terms, except as enforceabilitymay be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement ofcreditors’ rights generally or by equitable principles relating to enforceability.     Section 5.5. *Litigation*. Except as disclosed by the Company in writing from time totime to the Bank, there are no actions, suits, proceedings, claims or disputes pending, or to thebest knowledge of the Company, expressly threatened or contemplated, at law, in equity, inarbitration or before any Governmental Authority, against the Company, or its Subsidiaries or anyof their respective Properties which:     (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of thetransactions contemplated hereby or thereby; or     (b) if determined adversely to the Company or its Subsidiaries, would reasonably be expectedto have a Material Adverse Effect.     Section 5.6. *No Default*. No Default or Event of Default exists or would result fromthe incurring of any Obligations by the Company. Neither the Company nor any of its Subsidiariesis in default under or with respect to any Contractual Obligation in any respect which,individually or together with all such defaults, could reasonably be expected to have a MaterialAdverse Effect or that would, if such default had occurred after the Closing Date, create an Eventof Default under subsection 8.1(e).
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     Section 5.7. *ERISA*. (a) There is no outstanding liability under Title IV of ERISAwith respect to any Qualified Plan maintained or sponsored by the Company or any ERISA Affiliate,nor with respect to any Qualified Plan to which the Company or any ERISA Affiliate contributes oris obligated to contribute.     (b) No Qualified Plan subject to Title IV of ERISA has any Unfunded Pension Liability inexcess of $25,000,000 in the aggregate.     (c) No ERISA Event has occurred or is reasonably expected to occur with respect to any Planwhich, in either case, could reasonably be expected to have a Material Adverse Effect.     (d) Neither the Company nor any ERISA Affiliate has incurred nor reasonably expects to incur(i) any liability (and no event has occurred which, with the giving of notice under Section 4219 ofERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to aMultiemployer Plan or (ii) any liability under Title IV of ERISA (other than premiums due and notdelinquent under Section 4007 of ERISA) with respect to a Plan and which, in either case, couldreasonably be expected to have a Material Adverse Effect.     (e) Neither the Company nor any ERISA Affiliate has transferred any Unfunded Pension Liabilityto a Person other than the Company or an ERISA Affiliate or otherwise engaged in a transaction thatcould be subject to Section 4069 or 4212(c) of ERISA and which could reasonably be expected to havea Material Adverse Effect..     Section 5.8. *Use of Proceeds; Margin Regulations*. The proceeds of the Term Loan areintended to be and shall be used solely for the purposes set forth in and permitted by Section 6.9,and are not intended to be, and shall not be used in violation of Section 7.5. Neither the Companynor any of its Subsidiaries is generally engaged in the business of purchasing or selling MarginStock or extending credit for the purpose of purchasing or carrying Margin Stock.     Section 5.9. *Title to Properties*. The Company and each of its Subsidiaries havegood record and marketable title in fee simple to, or valid leasehold interests in, all realProperty necessary or used in the ordinary conduct of their respective businesses, except for suchdefects in title as could not, individually or in the aggregate, have a Material Adverse Effect.     Section 5.10. *Taxes*. The Company and its Subsidiaries have filed all Federal andother material tax returns and reports required to be filed, and have paid all Federal and othermaterial taxes, assessments, fees and other governmental charges levied or imposed upon them ortheir Properties, income or assets otherwise due and payable, except those which are beingcontested in good faith by appropriate proceedings and for which adequate reserves have beenprovided in accordance with GAAP. There is no proposed tax assessment against the Company or any ofits Subsidiaries which would, if the assessment were made, have a Material Adverse Effect.     Section 5.11. *Environmental Matters*. In the ordinary course of its business, theCompany conducts evaluations of the effect of Environmental Laws on the business, operations andproperties of the Company and its Subsidiaries consistent with the risks posed and the nature ofits operations, in the course of which it identifies and evaluates associated liabilities and costs(including, without limitation, any capital or operating expenditures required for clean-up or
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closure of properties presently or previously owned, any capital or operating expendituresrequired to achieve or maintain compliance with environmental protection standards imposed by lawor as a condition of any license, permit or contract, any related constraints on operatingactivities, including any periodic or permanent shutdown of any facility or reduction in the levelof or change in the nature of operations conducted thereat and any actual or potential liabilitiesto third parties, including employees, and any related costs and expenses). On the basis of theseevaluations, the Company has reasonably concluded that Environmental Laws are unlikely to have aMaterial Adverse Effect..     Section 5.12. *Regulated Entities*. None of the Company, any Person controlling theCompany, or any Subsidiary of the Company, is (a) an “Investment Company” within the meaning of theInvestment Company Act of 1940; or (b) subject to regulation under the Public Utility HoldingCompany Act of 1935.     Section 5.13. *Copyrights, Patents, Trademarks and Licenses, Etc*. The Company or itsSubsidiaries own or are licensed or otherwise have the right to use all of the material patents,trademarks, service marks, trade names, copyrights, contractual franchises, authorizations andother rights that are reasonably necessary for the operation of their respective businesses. Noclaim or litigation regarding any of the foregoing is pending or threatened, and no patent,invention, device, application, principle or any statute, law, rule, regulation, standard or codeis pending or, to the knowledge of the Company, proposed, which, in either case, could reasonablybe expected to have a Material Adverse Effect.     Section 5.14. *Financial Information*. The consolidated balance sheet of the Companyand its Subsidiaries as of October 30, 2004 and the related consolidated statements of earnings,stockholders’ equity and cash flows for the fiscal year then ended, reported on by Ernst & Young,LLP, copies of which have been delivered to the Bank, fairly present, in conformity with GAAP, theconsolidated financial position of the Company as of such date and its consolidated results ofoperations and cash flows for such period.ARTICLE 6Affirmative Covenants     The Company covenants and agrees that, so long as the Bank shall have any obligation to extendcredit hereunder, or any portion of the Term Loan or other Obligation shall remain unpaid orunsatisfied, unless the Bank shall waive compliance in writing:     Section 6.1. *Financial Statements*. The Company shall deliver to the Bank by thesame delivery method used for such deliveries under the Revolving Credit Agreement:     (a) as soon as available, but not later than 90 days after the end of each fiscal year, aconsolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal yearand the related consolidated statements of income, shareholders’ equity and cash flows for suchfiscal year, setting forth in each case in comparative form the figures for the previous fiscalyear, all certified by Ernst & Young, LLP or another nationally recognized independent public
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accounting firm which shall state that the Company’s consolidated financial statements contained insuch reports present fairly the financial position for the periods indicated in conformity withGAAP applied on a basis consistent with prior years. Such opinion shall not be qualified orlimited because of a restricted or limited examination by such accountant of any material portionof the Company’s or any Subsidiary’s records;     (b) as soon as available, but not later than 45 days after the end of each of the first threefiscal quarters of each fiscal year, a consolidated balance sheet of the Company and itsSubsidiaries as of the end of such fiscal quarter and the related statements of income and cashflows for such fiscal quarter and for the portion of the fiscal year ended at the end of suchfiscal quarter, setting forth in each case in comparative form the figures for the correspondingfiscal quarter and the corresponding portion of the previous fiscal year, all certified (subject tonormal year-end adjustments) as to fairness of presentation, GAAP and consistency by the chieffinancial officer, the treasurer or the chief accounting officer of the Company; and     (c) concurrently with the delivery of the financial statements referred to above, acertificate of the chief financial officer, the treasurer or the chief accounting officer of theCompany (i) setting forth in reasonable detail the calculations required to establish compliancewith the requirements of Sections 6.10 and 7.6 hereof, (ii) stating whether any Default exists onthe date of such certificate and, if any Default then exists, setting forth the details thereof andthe action which the Company is taking or proposes to take with respect thereto; and (iii)containing the certification required by clause (b) above.     Section 6.2. *Certificates; Other Information*. The Company shall furnish to theBank:     (a) promptly after the same are sent, copies of all financial statements and reports which theCompany sends to its shareholders generally; and promptly after the same are filed, copies of allfinancial statements and regular, periodical or special reports which the Company may make to, orfile with, the Securities and Exchange Commission under Section 13 or 15(d) of the SecuritiesExchange Act of 1934 or any successor or similar Governmental Authority; *provided*that thissubsection (a) shall not require the Company to furnish any statements or reports which it haspreviously furnished to the Bank; and     (b) promptly, such additional business, financial, corporate affairs and other information asthe Bank may from time to time reasonably request.     Section 6.3. *Notices*. The Company shall promptly notify the Bank:     (a) (i) of the occurrence of any Default or Event of Default, and (ii) of the occurrence orexistence of any event or circumstance that reasonably could be expected to become a Default orEvent of Default;     (b) of (i) any breach or non-performance of, or any default under, any Contractual Obligationof the Company or any of its Subsidiaries which could reasonably be expected to result in aMaterial Adverse Effect; and (ii) any dispute, litigation, investigation, proceeding or suspensionwhich may exist at any time between the Company or any of its Subsidiaries and any
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Governmental Authority which could reasonably be expected to result in a Material Adverse Effect;     (c) of the commencement of, or any material development in, any litigation or proceedingaffecting the Company or any Subsidiary, including pursuant to any applicable Environmental Lawthat, individually or in the aggregate, has resulted or could reasonably be expected to result in aMaterial Adverse Effect; and     (d) of the occurrence of any ERISA Event.Each notice pursuant to this Section 6.3 shall be accompanied by a written statement by aResponsible Officer of the Company setting forth details of the occurrence referred to therein, andstating in general what action the Company proposes to take with respect thereto. Each noticeunder subsection 6.3(a) shall describe with particularity any and all clauses or provisions of thisAgreement or other Loan Document that have been breached or violated.     Section 6.4. *Preservation of Corporate Existence, Etc*. Subject to Section 7.2, theCompany shall:     (a) preserve and maintain in full force and effect its corporate existence; and     (b) carry on its business in substantially the same manner and in substantially the samefields in which such business is now carried on.     Section 6.5. *Insurance*. The Company shall, and shall cause its Subsidiaries toinsure and maintain insurance with responsible insurance companies in such amounts and against suchrisks as is customarily carried by owners of similar businesses and property.     Section 6.6. *Payment of Obligations*. The Company shall, and shall cause itsSubsidiaries to, pay and discharge as the same shall become due and payable, all their respectiveobligations and liabilities, including:     (a) all tax liabilities, assessments and governmental charges or levies upon it or itsproperties or assets, unless the same are being contested in good faith by appropriate proceedingsand adequate reserves in accordance with GAAP are being maintained by the Company or suchSubsidiary;     (b) all lawful claims which, if unpaid, would by law become a Lien (other than a PermittedLien) upon its Property, unless the same are being contested in good faith by appropriateproceedings and adequate reserves in accordance with GAAP are being maintained by the Company orsuch Subsidiary; and     (c) all Indebtedness, as and when due and payable, but subject to any subordination provisionscontained in any instrument or agreement evidencing such Indebtedness.     Section 6.7. *Compliance with Laws*. The Company shall comply, and shall cause eachof its Subsidiaries to comply, in all material respects with all Requirements of Law (including,
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without limitation, Environmental Laws) of any Governmental Authority having jurisdiction overit or its business, except such as may be contested in good faith by proceedings diligently pursuedor as to which a bona fide dispute may exist and where non-compliance could not be expected toresult in a Material Adverse Effect.     Section 6.8. *Inspection of Property and Books and Records*. The Company shallmaintain and shall cause each of its Subsidiaries to maintain books of record and account inconformity with GAAP. The Company shall permit, and shall cause each of its Subsidiaries topermit, representatives and independent contractors of the Bank to visit and inspect any of theirrespective Properties, to examine their respective records, and make copies thereof or abstractstherefrom, and to discuss their respective affairs, finances and accounts with their respectivedirectors, officers, and independent public accountants, all at such reasonable times during normalbusiness hours, upon reasonable advance notice to the Company; *provided, however*, when an Event ofDefault exists the Bank may do any of the foregoing at the expense of the Company at any timeduring normal business hours and without advance notice.     Section 6.9. *Use of Proceeds*. The Company shall use the proceeds of the Term Loansolely for general corporate purposes, specifically to finance the expansion of its plant inFrance, but not in contravention of any Requirement of Law.     Section 6.10. *Minimum Net Worth*. The Company shall maintain at all timesConsolidated Net Worth (which for purposes of this Section 6.10, shall exclude from the calculationthereof subclause (iv) of clause (a) of the definition thereof) of not less than $325,000,000 plus(a) 50% of Consolidated Net Income for each fiscal quarter beginning with the fiscal quarter endingon January 31, 2004 (excluding from such calculations of Consolidated Net Income for purposes ofthis clause (a) any quarter in which the Consolidated Net Income is negative and (b) 85% of the netproceeds of any equity issued by the Company after the Effective Date.     Section 6.11.*Incorporation by Reference*. The Company hereby agrees that the termsand provisions of Article VI of the Revolving Credit Agreement (excluding Sections 6.13 through6.15) are hereby incorporated by reference and shall, notwithstanding any duplication of suchprovisions herein, apply to the same extent as if expressly stated herein. Subject to Section9.1(b) hereof, to the extent the provisions of such Article VI are inconsistent or conflict withthe terms of this Article 6, the provisions of the Revolving Credit Agreement shall control, butonly until the Maturity Date (as defined in the Revolving Credit Agreement).ARTICLE 7Negative Covenants     The Company hereby covenants and agrees that, so long as the Bank shall have any obligation toextend credit hereunder, or the Term Loan or any other Obligation shall remain unpaid orunsatisfied, unless the Bank shall waive compliance in writing:     Section 7.1. *Limitation on Liens*. The Company shall not, and shall not suffer orpermit any of its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer toexist any
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Lien upon or with respect to any part of its Property, whether now owned or hereafteracquired, except to the extent permitted under Section 7.01 of the Revolving Credit Agreement     Section 7.2. *Disposition of Assets; Consolidations and Mergers*. The Company shallnot, and shall not suffer or permit any of its Subsidiaries to, (i) directly or indirectly, sell,assign, lease, convey, transfer or otherwise dispose of (whether in one or a series oftransactions) any Property (including accounts and notes receivable, with or without recourse) orenter into any agreement to do any of the foregoing, or (ii) merge or consolidate with or into anyPerson, except to the extent permitted by Section 7.02 and 7.03 of the Revolving Credit Agreement.     Section 7.3. *Pari Passu Ranking; Benefit of Guarantees and Security*. (a) TheCompany will ensure that the claims and rights of the Bank against it under the Loan Documents willnot be at any time subordinate to, and will rank at all times at least *pari passu*with, the claimsand rights of any other of its unsecured creditors (including, without limitation, such creditorsunder the Revolving Credit Agreement), except as may be limited by bankruptcy, insolvency,moratorium or other similar laws affecting the enforcement of creditors’ rights in general.     (b) The Company shall not permit the Revolving Credit Agreement to be materially amended orto benefit from any guarantee given after the Closing Date or security granted by any Person unless(i) the Bank shall be afforded the opportunity to effect a similar amendment to this Agreement and(ii) such guarantee or security equally and ratably guarantees or secures, as the case may be, theobligations of the Company under this Agreement. The Company agrees, promptly upon requesttherefor by the Bank, to execute and deliver such amendments to this Agreement, and to cause anyother relevant Person to execute, deliver and record such guarantees and security documents, and doall such further acts, as the Bank may request in order to further effect the provisions of thisSection 7.3(b). The Company further agrees that it will notify the Bank as soon as the RevolvingCredit Agreement is so amended or the Company becomes aware of the existence of any such guaranteeor security as contemplated in this Section 7.3(b).     Section 7.4. *Transactions with Affiliates*. The Company shall not, and shall notsuffer or permit any of its Subsidiaries to, enter into any transaction with any Affiliate of theCompany or of any such Subsidiary, except as permitted by law and in the Ordinary Course ofBusiness and pursuant to reasonable terms no less favorable to the Company or such Subsidiary thanwould be obtained in a comparable arm’s length transaction with a Person which is not anAffiliate.     Section 7.5. *Margin Stock*. The Company shall not and shall not suffer or permit anyof its Subsidiaries to use any portion of the Term Loan proceeds, directly or indirectly, (i) topurchase or carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of the Company orothers incurred to purchase or carry Margin Stock or (iii) to extend credit for the purpose ofpurchasing or carrying any Margin Stock.     Section 7.6. *Leverage Ratio*. The Company shall not permit the Leverage Ratio toexceed 3.25 to 1.00.
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     Section 7.7. *Restricted Payments*. The Company will not declare or make anyRestricted Payment duringthe existence of any Default or Event of Default or if any Default wouldresult therefrom.     Section 7.8*Prepayment of Subordinated Notes.*The Company will not prepay or permitthe prepayment of any of the Subordinated Notes prior to the later to occur of the Final MaturityDate and the date on which all amounts outstanding under this Agreement and the other LoanDocuments have been paid in full.     Section 7.9*Incorporation by Reference*. The Company hereby agrees that the terms andprovisions of Article VII of the Revolving Credit Agreement are hereby incorporated by referenceand shall, notwithstanding any duplication of such provisions herein, apply to the same extent asif expressly stated herein. Subject to Section 9.1(b) hereof, to the extent the provisions of suchArticle VII are inconsistent or conflict with the terms of this Article 7, the provisions of theRevolving Credit Agreement shall control, but only until the Maturity Date (as defined in theRevolving Credit Agreement).ARTICLE 8Events of Default     Section 8.1. *Event of Default*. Any of the following shall constitute an “Event ofDefault”:     (a) *Non-Payment*. The Company fails to pay, (i) when and as required to be paid herein, anyamount of principal of the Term Loan, or (ii) within five (5) Business Days after the same shallbecome due, any interest, fee or any other amount payable hereunder or pursuant to any other LoanDocument;     (b) *Representation or Warranty*. Any representation or warranty by the Company made or deemedmade herein, in any Loan Document, or which is contained in any certificate, document or financialor other statement by the Company, or its Responsible Officers, furnished at any time under thisAgreement, or in or under any Loan Document, shall prove to have been incorrect in any materialrespect on or as of the date made or deemed made;     (c) *Specific Defaults*. The Company fails to perform or observe any term, covenant oragreement contained in Section 6.3, 6.4, 6.9, 6.10 or Article 7;     (d) *Other Defaults*. The Company fails to perform or observe any other term or covenantcontained in this Agreement or any Loan Document, and such default shall continue unremedied for aperiod of 30 days after the earlier to occur of (i) the first day on which the Company hasknowledge of such failure or (iii) written notice thereof has been given to the Company by theBank;     (e) *Cross-Default*. The Company or any material Subsidiary shall (i) fail to pay when due,subject to the applicable grace period, if any, whether at stated maturity or otherwise, anyprincipal of, interest on, or premiums, fees or expenses or any other amounts relating to, any
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Indebtedness in excess of $7,500,000 (other than the Loans) or (ii) fail to observe or perform,subject to the applicable grace period, if any, any other term, covenant, condition or agreementcontained in any instrument or agreement evidencing, securing or relating to any Indebtedness, ifthe effect thereof is to cause, or permit the holder or holders of any such Indebtedness orobligation, or a trustee or agent on behalf of such holder or holders to cause, such Indebtednessor obligation to become due prior to its stated maturity;     (f) *Insolvency; Voluntary Proceedings*. The Company or any of its material Subsidiaries (i)generally fails to pay, or admits in writing its inability to pay, its debts as they become due,subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii)voluntarily ceases to conduct its business in the ordinary course; (iii) commences any InsolvencyProceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of theforegoing;     (g) *Involuntary Proceedings*. (i) Any involuntary Insolvency Proceeding is commenced or filedagainst the Company or any material Subsidiary of the Company, or any writ, judgment, warrant ofattachment, execution or similar process, is issued or levied against a substantial part of theCompany’s or any of its material Subsidiaries’ Properties, and any such proceeding or petitionshall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar processshall not be released, vacated or fully bonded within 60 days after commencement, filing or levy;(ii) the Company or any of its material Subsidiaries admits the material allegations of a petitionagainst it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S.law) is ordered in any Insolvency Proceeding; or (iii) the Company or any of its materialSubsidiaries acquiesces in the appointment of a receiver, trustee, custodian, conservator,liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or asubstantial portion of its Property or business;     (h) *Default under Revolving Credit Agreement*. An “Event of Default” under (and as defined in)the Revolving Credit Agreement shall have occurred;     (i) *Monetary Judgments*. There shall be entered against the Company or any material Subsidiaryone or more judgments or decrees which in the aggregate exceed $3,000,000 (not paid or fullycovered by insurance or for which no adequate reserve has been established) and such judgments ordecrees shall not have been vacated, discharged, stayed or appealed within the applicable periodfor appeal from the date of entry thereof;     (j) *ERISA*. (i) the Company or an ERISA Affiliate shall fail to satisfy its contributionrequirements under Section 412(c)(11) of the Code, whether or not it has sought a waiver underSection 412(d) of the Code, and such failure could result in liability of more than $50,000,000;(ii) in the case of an ERISA Event involving the withdrawal from a Plan of a “substantial employer”(as defined in Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing employer’sproportionate share of that Plan’s Unfunded Pension Liabilities is more than $50,000,000; (iii) inthe case of an ERISA Event involving the complete or partial withdrawal from a Multiemployer Plan,the withdrawing employer has incurred a withdrawal liability in an aggregate amount exceeding$50,000,000; (iv) in the case of an ERISA Event not described in clause (ii) or (iii), the UnfundedPension Liabilities of the relevant Plan or Plans exceed
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$50,000,000; or (v) the commencement or increase of contributions to, or the adoption of or theamendment of a Plan by, a member of the Controlled Group shall result in a net increase in unfundedliabilities to the Controlled Group in excess of $50,000,000;     (k) *Invalidity of Loan Documents.*Any Loan Document, at any time after its execution anddelivery and for any reason other than as expressly permitted hereunder or under such other LoanDocuments or satisfaction in full of all the Obligations, ceases to be in full force and effect inany material respect; or the Company contests in any manner the validity or enforceability of anyLoan Document; or the Company denies that it has any or further liability or obligation under anyLoan Document other than in accordance with its terms; or     (l) *Change of Control*. There occurs any Change of Control with respect to the Company.     Section 8.2 *Rights and Remedies*. If an Event of Default occurs, the Bank may,     (a) declare the Bank’s obligation to make the Term Loan, if not then already made, to beterminated, whereupon such obligation shall forthwith be terminated;     (b) declare the unpaid principal amount of the Term Loan, all interest accrued and unpaidthereon, and all other amounts owing or payable hereunder or under any other Loan Document to beimmediately due and payable, without presentment, demand, protest or other notice of any kind, allof which are hereby expressly waived by the Company; and     (c) exercise all rights and remedies available to it under the Loan Documents or applicablelaw;*provided, however*, that upon the occurrence of any event specified in paragraph (f) or (g) ofSection 8.1 above, the obligation of the Bank to make the Term Loan, if not then already made,shall automatically terminate and the unpaid principal amount of the Term Loan outstanding and allinterest and other amounts as aforesaid shall automatically become due and payable without furtheract of the Bank.     Section 8.3. *Rights Not Exclusive*. The rights provided for in this Agreement andthe other Loan Documents are cumulative and are not exclusive of any other rights, powers,privileges or remedies provided by law or in equity, or under any other instrument, document oragreement now existing or hereafter arising.
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ARTICLE 9Miscellaneous     Section 9.1. *Amendments and Waivers*. (a) No amendment or waiver of any provision ofthis Agreement or any other Loan Document, and no consent with respect to any departure by theCompany therefrom, shall be effective unless the same shall be in writing and signed by the Bankand the Company, and then such waiver shall be effective only in the specific instance and for thespecific purpose for which given.     (b) The Company and the Bank agree to effect such amendment or amendments to this Agreementand the other Loan Documents as shall be necessary so that the covenants contained herein andtherein are no more restrictive than those to which the Company is bound under the Revolving CreditAgreement; *provided*, *however*, that if the Revolving Credit Agreement is amended to delete therefromin substance either Section 7.06 (Consolidated Net Worth) or Section 7.08 (Leverage Ratio), theforegoing shall not apply to, and no such amendment or amendments shall be required with respectto, Sections 6.10 and 7.6 hereof. For the avoidance of doubt, notwithstanding that the RevolvingCredit Agreement may no longer contain substantive provisions regarding minimum net worth andmaximum leverage, the restrictions contained in Sections 6.10 and 7.6 of this Agreement shallcontinue to apply to the Company.     Section 9.2. *Notices*. (a) All notices, requests and other communications providedfor hereunder to any party shall be in writing (including, unless the context expressly otherwiseprovides, by facsimile transmission, *provided*that any matter transmitted by the Company byfacsimile (i) shall be immediately confirmed by a telephone call to the Bank at the numberspecified on the signature page hereof, and (ii) shall be followed promptly by a hard copy originalthereof) and mailed, faxed or delivered, to such party: (A) at its address or facsimile number setforth on the signature pages hereof, or (B) at such other address or facsimile number as therespective party may hereafter specify for the purpose by notice to the to the other party.     (b) All such notices, requests and communications shall, when transmitted by overnightdelivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmittedby facsimile machine, respectively, or if mailed, upon the third Business Day after the datedeposited into the U.S. mail, or if delivered, upon delivery; except that notices pursuant toArticle 2 shall not be effective until actually received by the Bank.     (c) The Company acknowledges and agrees that any agreement of the Bank in Article 2 herein toreceive certain notices by telephone and facsimile is solely for the convenience and at the requestof the Company. The Bank shall be entitled to rely on the authority of any Person purporting to bea Person authorized by the Company to give such notice and the Bank shall not have any liability tothe Company or other Person on account of any action taken or not taken by the Bank in relianceupon such telephonic or facsimile notice. The obligation of the Company to repay the Term Loanshall not be affected in any way or to any extent by any failure by the Bank to receive writtenconfirmation of any telephonic or facsimile notice or the receipt by the Bank of
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a confirmation which is at variance with the terms understood by the Bank to be contained in thetelephonic or facsimile notice.     Section 9.3. *No Waiver; Cumulative Remedies*. No failure to exercise and no delay inexercising, on the part of the Bank, any right, remedy, power or privilege hereunder, shall operateas a waiver thereof; nor shall any single or partial exercise of any right, remedy, power orprivilege hereunder preclude any other or further exercise thereof or the exercise of any otherright, remedy, power or privilege.     Section 9.4. *Costs and Expenses*. The Company shall, whether or not the transactionscontemplated hereby shall be consummated:     (a) pay or reimburse the Bank within fifteen Business Days after demand for (i) allreasonable, out-of-pocket expenses incurred by the Bank in connection with the development,preparation, delivery, execution and administration of, this Agreement, any Loan Document and anyother documents prepared in connection herewith or therewith and (ii) any amendment, supplement,waiver or modification to this Agreement, any Loan Document and any other documents prepared inconnection herewith or therewith, in each case, whether or not consummated, and the consummation ofthe transactions contemplated hereby and thereby, including the reasonable fees and disbursementsof counsel incurred by the Bank with respect thereto; *provided*, *however*, that the fees and expensesunder clause (i) above shall not exceed $10,000 in the aggregate; and     (b) pay or reimburse the Bank within fifteen Business Days after demand for all costs andexpenses incurred by it in connection with the enforcement, attempted enforcement, or preservationof any rights or remedies (including in connection with any “workout” or restructuring regardingthe Loans, and including in any Insolvency Proceeding or appellate proceeding) under thisAgreement, any other Loan Document, and any such other documents, including fees and disbursementsof counsel incurred by the Bank.     Section 9.5. *Indemnity*. (a) The Company shall pay, indemnify, and hold the Bank andeach of its officers, directors, employees, counsel, agents and attorneys-in-fact (each, an“**Indemnified Person**”) harmless from and against any and all liabilities, obligations, losses,damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (includingthe reasonable fees and disbursements of counsel) of any kind or nature whatsoever with respect tothe execution, delivery, enforcement, performance and administration of this Agreement and anyother Loan Documents, or the transactions contemplated hereby and thereby, and with respect to anyinvestigation, litigation or proceeding (including any Insolvency Proceeding or appellateproceeding) related to this Agreement or the Term Loan or the use or proposed use of the proceedsthereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively,the “**Indemnified Liabilities**”); *provided*, that the Company shall have no obligation hereunder toany Indemnified Person with respect to Indemnified Liabilities to the extent resulting from thegross negligence or willful misconduct of such Indemnified Person. The agreements in this Sectionshall survive payment of all Obligations and termination of this Agreement and the other LoanDocuments.
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     (b) To the extent permitted by applicable law, the Company shall not assert, and the Companyhereby waives, any claim against any Indemnified Person on any theory of liability, for special,indirect, consequential or punitive damages arising out of, in connection with, or as a result of,this Agreement, any other Loan Document or any agreement or instrument contemplated hereby orthereby, the Term Loan or the use or proposed use of the proceeds thereof.     Section 9.6. *Marshalling; Payments Set Aside*. The Bank shall be under no obligationto marshall any assets in favor of the Company or any other Person or against or in payment of anyor all of the Obligations. To the extent that the Company makes a payment or payments to the Bank,or the Bank exercises its rights of set-off, and such payment or payments or the proceeds of suchset-off or any part thereof are subsequently invalidated, declared to be fraudulent orpreferential, set aside or required (including pursuant to any settlement entered into by the Bank)to be repaid to a trustee, receiver or any other party in connection with any InsolvencyProceeding, or otherwise, then to the extent of such recovery the obligation or part thereoforiginally intended to be satisfied shall be revived and continued in full force and effect as ifsuch payment had not been made or such enforcement or set-off had not occurred.     Section 9.7. *Successors and Assigns*. The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and their respective successors andassigns permitted hereby, except that the Company may not assign or otherwise transfer any of itsrights or obligations hereunder without the prior written consent of the Bank (and any attemptedassignment or transfer by the Company without such consent shall be null and void).     Section 9.8. *Assignments*.     (a) The Bank may assign all or a portion of its rights and obligations under this Agreement toany branch, Lending Office or Affiliate of Calyon (or any successor entity). From and after theeffective date of an assignment, the assignee shall be a party hereto and, to the extent of theinterest assigned, have the rights and obligations of the Bank under this Agreement, and the Bankshall, to the extent of the interest assigned, be released from its obligations under thisAgreement (and, in the case of an assignment covering all of the Bank’s rights and obligationsunder this Agreement, the Bank shall cease to be a party hereto but shall continue to be entitledto the benefits of Sections 3.1, 3.3, 3.4, 9.4, and 9.5).     (b) The Bank may at any time pledge or assign a security interest in all or any portion of itsrights under this Agreement to secure obligations of the Bank, including without limitation anypledge or assignment to secure obligations to a Federal Reserve Bank; *provided*that no such pledgeor assignment of a security interest shall release the Bank from any of its obligations hereunderor substitute any such pledgee or assignee for the Bank as a party hereto.     Section 9.9. *Set-off*. In addition to any rights and remedies of the Bank providedby law, if an Event of Default exists, the Bank is authorized at any time and from time to time,without prior notice to the Company, any such notice being waived by the Company to the fullestextent permitted by law, to set off and apply any and all deposits (general or special, time ordemand, provisional or final) at any time held by, and other indebtedness at any time owing to, theBank or any of its Affiliates to or for the credit or the account of the Company against any
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and all Obligations owing to the Bank or Affiliate, now or hereafter existing, irrespective ofwhether or not the Bank shall have made demand under this Agreement or any Loan Document andalthough such Obligations may be contingent or unmatured. The Bank agrees promptly to notify theCompany after any such set-off and application made by the Bank or Affiliate; *provided, however*,that the failure to give such notice shall not affect the validity of such set-off and application.The rights of each Bank under this Section 9.9 are in addition to the other rights and remedies(including other rights of set-off) which the Bank may have.     Section 9.10. *Counterparts*. This Agreement may be executed by one or more of theparties to this Agreement in any number of separate counterparts, each of which, when so executed,shall be deemed an original, and all of said counterparts taken together shall be deemed toconstitute but one and the same instrument. A set of the copies of this Agreement signed by all theparties shall be lodged with the Company.     Section 9.11. *Severability*. The illegality or unenforceability of any provision ofthis Agreement or any instrument or agreement required hereunder shall not in any way affect orimpair the legality or enforceability of the remaining provisions of this Agreement or anyinstrument or agreement required hereunder.     Section 9.12. *No Third Parties Benefited*. This Agreement is made and entered intofor the sole protection and legal benefit of the Company and the Bank, and their permittedsuccessors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, orhave any direct or indirect cause of action or claim in connection with, this Agreement or any ofthe other Loan Documents. The Bank shall not have any obligation to any Person not a party to thisAgreement or other Loan Documents.     Section 9.13. *Governing Law and Jurisdiction*. (a) THIS AGREEMENT SHALL BE GOVERNEDBY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTMAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERNDISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND THEBANK CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OFTHOSE COURTS. EACH OF THE COMPANY AND THE BANK IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANYOBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOWOR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OFTHIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY AND THE BANK EACH WAIVES PERSONALSERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTEDBY NEW YORK LAW.
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     Section 9.14. *Waiver of Jury Trial*. THE COMPANY AND THE BANK EACH WAIVES THEIRRESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OFOR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY ORTHEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIESAGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OROTHERWISE. THE COMPANY AND THE BANK EACH AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BETRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREETHAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANYACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THEVALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF ORTHEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS ORMODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.     Section 9.15. *Entire Agreement*. This Agreement, together with the other LoanDocuments embodies the entire agreement and understanding between the Company and the Bank, andsupersedes all prior or contemporaneous agreements and understandings of such Persons, verbal orwritten, relating to the subject matter hereof and thereof.[SIGNATURES TO FOLLOW]
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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed anddelivered by their proper and duly authorized officers as of the day and year first above written.       SPARTECH CORPORATION       By: /s/ Randy C. Martin       Name: Randy C. Martin  Title: Executive VP and CFO       Address for notices:       Spartech Corporation120 South CentralSuite 1700Clayton, Missouri 63105Attn:  Randy C. Ridenhour   Director of Tax & Treasury  Tel: (314) 721-4242  Facsimile: (314) 721-1543       CALYON NEW YORK BRANCH       By: /s/ Joseph A. Philbin       Name: Joseph A. Philbin  Title: Director       By: /s/ Lee E. Greve       Name: Lee E. Greve  Title: Managing Director Deputy Manager       Address for notices:      For Borrowings and rate-settings:       Attention: Jaikissoon SanicharLoan Servicing Dept.Calyon New York Branch1301 Avenue of the AmericasNew York, NY 10019Tel. (212) 261-7644Fax (212) 459 3180E-Mail: jaikissoon.sanichar@us.calyon.com
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     For Payments (including Prepayments) of principal, interest, fees,etc.:       Calyon