UNITED STATES
 SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
 
FORM 10-Q

ý	Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934	
 	 	
For the quarterly period ended September 26, 2004	
 	 	
or	
 	 	
o	Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934	
 
For the transition period from              to              
 
Commission file number 1-11499
 
WATTS WATER TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)

Delaware	 	04-2916536	
(State of incorporation)	 	(I.R.S. Employer Identification No.)	
 	 	 	
815 Chestnut Street, North Andover, MA	 	01845	
(Address of principal executive offices)	 	(Zip Code)	
 	
Registrant’s telephone number, including area code:  (978) 688-1811	

(Former Name, Former Address and Former Fiscal year, if changed since last report.)	
 
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes  ý   No  o
 
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes  ý   No  o
 
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

Class	 	Outstanding at November 1, 2004	 	
 	 	 	 	
Class A Common Stock, $.10 par value	 	25,009,049	 	 	
Class B Common Stock, $.10 par value	 	7,343,880	 	 	

 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
 
INDEX

Part I.  Financial Information	 	
 	 	 	 	
 	Item 1.  Financial Statements	 	
 	 	 	 	
 	 	Consolidated Balance Sheets at September 26, 2004 and December 31, 2003 (unaudited)	 	
 	 	 	 	
 	 	Consolidated Statements of Operations for the Third Quarters Ended September 26, 2004 and September 28, 2003 (unaudited)	 	
 	 	 	 	
 	 	Consolidated Statements of Operations for the Nine Months Ended September 26, 2004 and September 28, 2003 (unaudited)	 	
 	 	 	 	
 	 	Consolidated Statements of Cash Flows for the Nine Months Ended September 26, 2004 and September 28, 2003 (unaudited)	 	
 	 	 	 	
 	 	Notes to Consolidated Financial Statements (unaudited)	 	
 	 	 	 	
 	Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	 	
 	 	 	 	
 	Item 3.	Quantitative and Qualitative Disclosures About Market Risk	 	
 	 	 	 	
 	Item 4.	Controls and Procedures	 	
 	 	 	 	
Part II.  Other Information	 	
 	 	 	 	
 	Item 1.	Legal Proceedings	 	
 	 	 	 	
 	Item 5.	Other Information	 	
 	 	 	 	
 	Item 6.	Exhibits	 	
 	 	 	 	
 	Signatures	 	
 	 	 	 	
 	Exhibit Index	 	

2

 
PART I. FINANCIAL INFORMATION
 
ITEM 1. FINANCIAL STATEMENTS
 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except share information)
(Unaudited)

 	 	September 26,
2004	 	December 31,
2003	 	
ASSETS	 	 	 	 	 	
CURRENT ASSETS:	 	 	 	 	 	
Cash and cash equivalents	 	$	69,751	 	$	149,361	 	
Trade accounts receivable, less allowance for doubtful accounts of $9,132 at September 26, 2004 and $7,772 at December 31, 2003	 	161,920	 	136,064	 	
Inventories, net:	 	 	 	 	 	
Raw materials	 	53,915	 	41,998	 	
Work in process	 	26,569	 	24,348	 	
Finished goods	 	127,747	 	90,253	 	
Total Inventories	 	208,231	 	156,599	 	
Prepaid expenses and other assets	 	15,856	 	10,438	 	
Deferred income taxes	 	23,032	 	23,552	 	
Assets of discontinued operations	 	9,394	 	4,460	 	
Total Current Assets	 	488,184	 	480,474	 	
PROPERTY, PLANT AND EQUIPMENT:	 	 	 	 	 	
Property, plant and equipment, at cost	 	306,589	 	284,250	 	
Accumulated depreciation	 	(158,713	)	(138,539	)	
Property, plant and equipment, net	 	147,876	 	145,711	 	
OTHER ASSETS:	 	 	 	 	 	
Goodwill	 	216,531	 	184,901	 	
Other	 	49,344	 	27,557	 	
TOTAL ASSETS	 	$	901,935	 	$	838,643	 	
 	 	 	 	 	 	
LIABILITIES AND STOCKHOLDERS’ EQUITY	 	 	 	 	 	
CURRENT LIABILITIES:	 	 	 	 	 	
Accounts payable	 	$	77,551	 	$	74,068	 	
Accrued expenses and other liabilities	 	60,504	 	55,252	 	
Accrued compensation and benefits	 	22,516	 	18,466	 	
Current portion of long-term debt	 	9,433	 	13,251	 	
Liabilities of discontinued operations	 	22,159	 	11,302	 	
Total Current Liabilities	 	192,163	 	172,339	 	
LONG-TERM DEBT, NET OF CURRENT PORTION	 	187,781	 	179,061	 	
DEFERRED INCOME TAXES	 	20,786	 	15,978	 	
OTHER NONCURRENT LIABILITIES	 	24,572	 	25,588	 	
MINORITY INTEREST	 	7,457	 	9,286	 	
 	 	 	 	 	 	
STOCKHOLDERS’ EQUITY:	 	 	 	 	 	
Preferred Stock, $.10 par value; 5,000,000 shares authorized; no shares issued or outstanding	 	—	 	—	 	
Class A Common Stock, $.10 par value; 80,000,000 shares authorized; 1 vote per share; issued and outstanding: 25,009,049 shares at September 26, 2004 and 24,459,121 shares at December 31, 2003	 	2,501	 	2,446	 	
Class B Common Stock, $.10 par value; 25,000,000 shares authorized; 10 votes per share; issued and outstanding: 7,343,880 shares at September 26, 2004 and 7,605,224 shares at December 31, 2003	 	734	 	761	 	
Additional paid-in capital	 	138,380	 	132,983	 	
Deferred compensation	 	(716	)	—	 	
Retained earnings	 	318,254	 	286,396	 	
Accumulated other comprehensive income	 	10,023	 	13,805	 	
Total Stockholders’ Equity	 	469,176	 	436,391	 	
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY	 	$	901,935	 	$	838,643	 	
 
See accompanying notes to consolidated financial statements.
 
3

 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands, except per share information)
(Unaudited)

 	 	Third Quarter Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	
Net sales	 	$	214,843	 	$	175,509	 	
Cost of goods sold	 	139,828	 	116,136	 	
GROSS PROFIT	 	75,015	 	59,373	 	
Selling, general & administrative expenses	 	52,235	 	41,396	 	
OPERATING INCOME	 	22,780	 	17,977	 	
Other (income) expense:	 	 	 	 	 	
Interest income	 	(202	)	(362	)	
Interest expense	 	2,641	 	3,659	 	
Minority interest	 	371	 	23	 	
Other	 	(371	)	(410	)	
 	 	2,439	 	2,910	 	
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES	 	20,341	 	15,067	 	
Provision for income taxes	 	6,511	 	6,048	 	
INCOME FROM CONTINUING OPERATIONS	 	13,830	 	9,019	 	
Loss from discontinued operations, net of taxes of $78 and $71	 	(125	)	(114	)	
NET INCOME	 	$	13,705	 	$	8,905	 	
 	 	 	 	 	 	
BASIC EPS	 	 	 	 	 	
Income (loss) per share:	 	 	 	 	 	
Continuing operations	 	$	0.43	 	$	0.33	 	
Discontinued operations	 	(0.01	)	—	 	
NET INCOME	 	$	0.42	 	$	0.33	 	
Weighted average number of shares	 	32,320	 	27,306	 	
 	 	 	 	 	 	
DILUTED EPS	 	 	 	 	 	
Income (loss) per share:	 	 	 	 	 	
Continuing operations	 	$	0.42	 	$	0.33	 	
Discontinued operations	 	—	 	(0.01	)	
NET INCOME	 	$	0.42	 	$	0.32	 	
Weighted average number of shares	 	32,792	 	27,632	 	
 	 	 	 	 	 	
Dividends per share	 	$	0.07	 	$	0.06	 	
 
See accompanying notes to consolidated financial statements.
 
4

 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands, except per share information)
(Unaudited)

 	 	Nine Months Ended	 	
 	 	September 26, 2004	 	September 28, 2003	 	
Net sales	 	$	618,183	 	$	514,713	 	
Cost of goods sold	 	400,964	 	341,011	 	
GROSS PROFIT	 	217,219	 	173,702	 	
Selling, general & administrative expenses	 	150,099	 	123,361	 	
Restructuring	 	—	 	114	 	
OPERATING INCOME	 	67,120	 	50,227	 	
Other (income) expense:	 	 	 	 	 	
Interest income	 	(721	)	(744	)	
Interest expense	 	7,994	 	8,563	 	
Minority interest	 	877	 	(129	)	
Other	 	(850	)	(448	)	
 	 	7,300	 	7,242	 	
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES	 	59,820	 	42,985	 	
Provision for income taxes	 	20,941	 	16,350	 	
INCOME FROM CONTINUING OPERATIONS	 	38,879	 	26,635	 	
Loss from discontinued operations, net of taxes of $137 and $1,887	 	(220	)	(3,014	)	
NET INCOME	 	$	38,659	 	$	23,621	 	
 	 	 	 	 	 	
BASIC EPS	 	 	 	 	 	
Income (loss) per share:	 	 	 	 	 	
Continuing operations	 	$	1.21	 	$	0.98	 	
Discontinued operations	 	(0.01	)	(0.11	)	
NET INCOME	 	$	1.20	 	$	0.87	 	
Weighted average number of shares	 	32,242	 	27,196	 	
 	 	 	 	 	 	
DILUTED EPS	 	 	 	 	 	
Income (loss) per share:	 	 	 	 	 	
Continuing operations	 	$	1.19	 	$	0.97	 	
Discontinued operations	 	(0.01	)	(0.11	)	
NET INCOME	 	$	1.18	 	$	0.86	 	
Weighted average number of shares	 	32,673	 	27,428	 	
 	 	 	 	 	 	
Dividends per share	 	$	0.21	 	$	0.18	 	
 
See accompanying notes to consolidated financial statements.
 
5

 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)

 	 	Nine Months Ended	 	
 	 	September 26, 2004	 	September 28, 2003	 	
OPERATING ACTIVITIES	 	 	 	 	 	
Income from continuing operations	 	$	38,879	 	$	26,635	 	
Adjustments to reconcile net income from continuing operations to net cash used in continuing operating activities:	 	 	 	 	 	
Depreciation	 	20,107	 	16,395	 	
Amortization	 	1,242	 	632	 	
Deferred income taxes	 	(236	)	(1,066	)	
Loss on disposal of assets	 	559	 	90	 	
Equity in undistributed earnings of affiliates	 	—	 	(37	)	
Changes in operating assets and liabilities, net of effects from business acquisitions and divestitures:	 	 	 	 	 	
Accounts receivable	 	(22,560	)	(15,856	)	
Inventories	 	(43,622	)	(9,499	)	
Prepaid expenses and other assets	 	(2,084	)	(4,524	)	
Accounts payable, accrued expenses and other liabilities	 	5,560	 	(2,565	)	
 	 	 	 	 	 	
Net cash provided by (used in) operating activities	 	(2,155	)	10,205	 	
 	 	 	 	 	 	
INVESTING ACTIVITIES	 	 	 	 	 	
Additions to property, plant and equipment	 	(16,823	)	(14,067	)	
Proceeds from the sale of property, plant and equipment	 	1,939	 	230	 	
Business acquisitions, net of cash acquired	 	(71,392	)	(15,291	)	
Increase in restricted treasury securities	 	—	 	(78,016	)	
Increase in other assets	 	(1,472	)	(294	)	
 	 	 	 	 	 	
Net cash used in investing activities	 	(87,748	)	(107,438	)	
 	 	 	 	 	 	
FINANCING ACTIVITIES	 	 	 	 	 	
Proceeds from long-term borrowings	 	90,868	 	218,383	 	
Payments of long-term debt	 	(82,891	)	(84,302	)	
Debt issue costs	 	(949	)	(1,670	)	
Proceeds from exercise of stock options	 	4,708	 	4,156	 	
Dividends	 	(6,801	)	(4,931	)	
Net cash provided by financing activities	 	4,935	 	131,636	 	
Effect of exchange rate changes on cash and cash equivalents	 	(346	)	1,171	 	
Net cash provided by (used in) discontinued operations	 	5,704	 	(6,929	)	
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS	 	(79,610	)	28,645	 	
Cash and cash equivalents at beginning of period	 	149,361	 	10,973	 	
CASH AND CASH EQUIVALENTS AT END OF PERIOD	 	$	69,751	 	$	39,618	 	
 	 	 	 	 	 	
NON CASH INVESTING AND FINANCING ACTIVITIES	 	 	 	 	 	
Acquisition of businesses:	 	 	 	 	 	
Fair value of assets acquired	 	$	79,266	 	$	21,217	 	
Cash paid, net of cash acquired	 	71,392	 	15,291	 	
Liabilities assumed	 	$	7,874	 	$	5,926	 	
 	 	 	 	 	 	
CASH PAID FOR	 	 	 	 	 	
Interest	 	$	6,254	 	$	5,839	 	
Taxes	 	$	26,267	 	$	12,714	 	
 
See accompanying notes to consolidated financial statements.
 
6

 
WATTS WATER TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
 
1.                                       Basis of Presentation
 
The accompanying unaudited consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X.  Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.  In the opinion of management, all adjustments (consisting of normal recurring adjustments) considered necessary for a fair presentation have been included in Watts Water Technologies, Inc.’s Consolidated Balance Sheet as of September 26, 2004, its Consolidated Statements of Operations for the third quarter and nine months ended September 26, 2004 and September 28, 2003, and its Consolidated Statements of Cash Flows for the nine months ended September 26, 2004 and September 28, 2003.
 
The balance sheet at December 31, 2003 has been derived from the audited financial statements at that date. The accounting policies followed by the Company are described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003. It is suggested that the financial statements included in this report be read in conjunction with the financial statements and notes included in the December 31, 2003 Annual Report on Form 10-K. Operating results for the interim period presented are not necessarily indicative of the results to be expected for the year ending December 31, 2004.
 
Certain amounts in fiscal year 2003 have been reclassified to permit comparison with the 2004 presentation. These reclassifications had no effect on reported results of operations or stockholders’ equity.
 
2.                                       Accounting Policies
 
Estimates
 
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
 
Goodwill and Long-Lived Assets
 
Goodwill is recorded when the consideration paid for acquisitions exceeds the fair value of net tangible and intangible assets acquired.  Financial Accounting Standards Board Statement No. 141, “Business Combinations” (FAS 141) requires that the purchase method of accounting be used for all business combinations completed after June 30, 2001.  Financial Accounting Standards Board Statement No. 142, “Goodwill and Other Intangible Assets” (FAS 142) requires that goodwill and other intangible assets with indefinite lives no longer be amortized, but rather be tested annually for impairment. The Company performs its annual test for indications of goodwill impairment on the last day of the Company’s fiscal October, which was October 24 for fiscal year 2004.  The amount recorded in goodwill and other intangible assets acquired during the first nine months of 2004 are based on preliminary purchase allocations consistent with the guidelines of FAS 141.
 
The changes in the carrying amount of goodwill by geographic segments from December 31, 2003 to September 26, 2004 are as follows:

 	 	North
America	 	Europe	 	China	 	Total	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	
Carrying amount at the beginning of period	 	$	100,017	 	$	81,812	 	$	3,072	 	$	184,901	 	
Goodwill acquired during the period	 	24,615	 	8,710	 	—	 	33,325	 	
Adjustments to goodwill during the period	 	150	 	—	 	—	 	150	 	
Effect of change in exchange rates used for translation	 	9	 	(1,854	)	—	 	(1,845	)	
Carrying amount at end of period	 	$	124,791	 	$	88,668	 	$	3,072	 	$	216,531	 	
 
7

 
Other intangible assets include the following and are presented in “Other Assets: Other”, in the September 26, 2004 Consolidated Balance Sheet:

 	 	Gross
Carrying
Amount	 	Accumulated
Amortization	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Patents	 	$	8,888	 	$	(4,167	)	
Other	 	16,968	 	(2,181	)	
Total amortizable intangibles	 	25,856	 	(6,348	)	
Intangible assets not subject to amortization	 	19,180	 	—	 	
Total	 	$	45,036	 	$	(6,348	)	
 
Aggregate amortization expense for amortized other intangible assets for the third quarter of 2004 and 2003 was $529,000 and $165,000, respectively, and for the first nine months of 2004 and 2003 was $1,242,000 and $632,000, respectively.  Additionally, future amortization expense for other intangible assets will be approximately $537,000 for the remainder of 2004, $2,135,000 for 2005, $2,116,000 for 2006, $1,561,000 for 2007 and $1,388,000 for 2008.
 
Stock Based Compensation
 
The Company accounts for stock based compensation in accordance with Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees” (APB No. 25), and related interpretations. The Company records stock based compensation expense associated with its Management Stock Purchase Plan due to the discount from market price. Stock-based compensation expense is amortized to expense on a straight-line basis over the vesting period. In the second quarter of 2004, the Company issued 32,133 shares of restricted stock that vest over 3 years with a fair market price between $25.00 and $26.50 per share amounting to approximately $805,000 of deferred compensation. The restricted stock awards are amortized to expense on a straight-line basis over the vesting period.  The following table illustrates the effect on reported net income and earnings per common share if the Company had applied the fair value method to measure stock-based compensation as required under the disclosure provisions of Financial Accounting Standards Board No. 123, “Accounting for Stock-Based Compensation ” (FAS 123) as amended by Financial Accounting Standards Board No. 148 “Accounting for Stock-Based Compensation Transition and Disclosure” (FAS 148).

 	 	Third Quarter Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Net income, as reported	 	$	13,705	 	$	8,905	 	
Add: Stock-based employee compensation expense from the Management Stock Purchase Plan and 2004 Stock Incentive Plan included in reported net income, net of tax	 	137	 	51	 	
Deduct: Stock-based employee compensation expense determined under the fair value method, net of tax:	 	 	 	 	 	
Restricted stock units (Management Stock Purchase Plan)	 	(112	)	(76	)	
Restricted stock award (2004 Stock Incentive Plan)	 	(41	)	—	 	
Employee stock options	 	(150	)	(158	)	
Proforma net income	 	$	13,539	 	$	8,722	 	
 	 	 	 	 	 	
Earnings per share:	 	 	 	 	 	
Basic-as reported	 	$	0.42	 	$	0.33	 	
Basic-proforma	 	$	0.42	 	$	0.32	 	
Diluted-as reported	 	$	0.42	 	$	0.32	 	
Diluted-proforma	 	$	0.41	 	$	0.31	 	
 
8

 

 	 	Nine Months Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Net income, as reported	 	$	38,659	 	$	23,621	 	
Add: Stock-based employee compensation expense from the Management Stock Purchase Plan and 2004 Stock Incentive Plan included in reported net income, net of tax	 	343	 	153	 	
Deduct: Stock-based employee compensation expense determined under the fair value method, net of tax:	 	 	 	 	 	
Restricted stock units (Management Stock Purchase Plan)	 	(336	)	(203	)	
Restricted stock award (2004 Stock Incentive Plan)	 	(55	)	—	 	
Employee stock options	 	(450	)	(416	)	
Proforma net income	 	$	38,161	 	$	23,155	 	
 	 	 	 	 	 	
Earnings per share:	 	 	 	 	 	
Basic-as reported	 	$	1.20	 	$	0.87	 	
Basic-proforma	 	$	1.18	 	$	0.85	 	
Diluted-as reported	 	$	1.18	 	$	0.86	 	
Diluted-proforma	 	$	1.17	 	$	0.84	 	
 
Shipping and Handling
 
The Company’s shipping costs included in selling, general and administrative expense were $6,071,000 and $5,827,000 for the third quarter of 2004 and 2003, respectively, and were $18,842,000 and $16,395,000 for the first nine months of 2004 and 2003, respectively.
 
Research and Development
 
Research and development costs included in selling, general, and administrative expense were $2,447,000, and $2,029,000 for the third quarter of 2004 and 2003, respectively, and were $7,312,000 and $7,060,000 for the first nine months of 2004 and 2003, respectively.
 
New Accounting Standards
 
In December 2003, the Financial Accounting Standards Board (FASB) issued Financial Accounting Standards Board Statement No. 132 revised 2003, “Employers’ Disclosures about Pensions and Other Postretirement Benefits” (FAS 132R). This standard increases the existing disclosure requirements by requiring more details about pension plan assets, benefit obligations, cash flows, benefit costs and related information. Companies will be required to segregate plan assets by category, such as debt, equity and real estate, and to provide certain expected rates of return and other informational disclosures. FAS 132(R) also requires companies to disclose various elements of pension and postretirement benefit costs in interim-period financial statements for quarters beginning after December 15, 2003. The Company adopted the additional interim disclosure provisions of FAS 132(R) effective January 1, 2004.
 
9

 
3.                                       Discontinued Operations
 
In September 1996, the Company divested its Municipal Water Group businesses, which included Henry Pratt, James Jones Company and Edward Barber and Company Ltd.  Costs and expenses related to the Municipal Water Group for 2004 and 2003 relate to legal and settlement costs associated with the James Jones litigation (see Note 11).
 
Condensed operating statements and balance sheets for discontinued operations are summarized below:

 	 	Third Quarter Ended	 	Nine Months Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	September 26,
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	
Net sales	 	$	—	 	$	—	 	$	—	 	$	—	 	
Cost and expenses	 	 	 	 	 	 	 	 	 	
Municipal Water Group	 	(203	)	(185	)	(357	)	(4,901	)	
Loss before income taxes	 	(203	)	(185	)	(357	)	(4,901	)	
Income tax benefit	 	78	 	71	 	137	 	1,887	 	
Loss from discontinued operations, net of taxes	 	$	(125	)	$	(114	)	$	(220	)	$	(3,014	)	

 	 	September 26, 2004	 	
 	 	(in thousands)	 	
 	 	 	 	
Prepaid expenses and other assets	 	$	1,605	 	
Deferred income taxes	 	7,789	 	
Assets of discontinued operations	 	$	9,394	 	
 	 	 	 	
Accrued expenses and other liabilities	 	$	22,159	 	
Liabilities of discontinued operations	 	$	22,159	 	
 
4.                                       Derivative Instruments
 
Certain forecasted transactions, primarily intercompany sales between the United States and Canada, and assets are exposed to foreign currency risk. The Company monitors its foreign currency exposures on an ongoing basis to maximize the overall effectiveness of its foreign currency hedge positions. During the first nine months of 2004 and 2003, the Company used foreign currency forward contracts and options as a means of hedging exposure to foreign currency risks. The Company’s foreign currency contracts have been designated and qualify as cash flow hedges under the criteria of FAS 133. FAS 133 requires that changes in fair value of derivatives that qualify as cash flow hedges be recognized in other comprehensive income while the ineffective portion of the derivative’s change in fair value be recognized immediately in earnings.  The amounts recorded in other comprehensive income for the change in the fair value of the contracts were immaterial for the third quarter and nine months ended September 26, 2004.  For the third quarter and nine months ended September 28, 2003, the Company recorded income of $18,000 and $476,000, respectively, in other comprehensive income for the change in the fair value of the contracts.
 
The Company occasionally uses commodity futures contracts to fix the price on a certain portion of certain raw materials used in the manufacturing process. These contracts highly correlate to the actual purchases of the commodity and the contract values are reflected in the cost of the commodity as it is actually purchased. At September 26, 2004 and September 28, 2003 the Company had no outstanding commodity contracts.
 
10

 
5.                                       Restructuring
 
The Company continues to implement a plan to consolidate several of its manufacturing plants both in North America and Europe. At the same time it is expanding its manufacturing capacity in China and other low cost areas of the world.  In the third quarter of 2004, the Company recorded a pre-tax charge of approximately $567,000 compared to a net recovery of $56,000 in the third quarter of 2003. For the first nine months of 2004, the Company recorded a pre-tax net charge of approximately $2,304,000 compared to $1,027,000 for the first nine months of 2003. The pre-tax costs for 2004 were recorded in costs of goods sold. The costs incurred for 2004 were for accelerated depreciation for both the expected closure of a U.S. manufacturing plant and a reduction in the estimated useful lives of certain manufacturing equipment.  The Company completed its severance payments related to the 2003 manufacturing restructuring plan during the first quarter of 2004.
 
6.                                       Earnings per Share
 
The following tables set forth the reconciliation of the calculation of earnings per share:

 	 	For the Third Quarter Ended September 26, 2004	 	
 	 	Income
(Numerator)	 	Shares
(Denominator)	 	Per Share
Amount	 	
 	 	(Amounts in thousands, except share and per share amounts)	 	
Basic EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	13,830	 	32,319,532	 	$	0.43	 	
Loss from discontinued operations	 	(125	)	 	 	(0.01	)	
Net income	 	$	13,705	 	 	 	$	0.42	 	
Effect of dilutive securities	 	 	 	 	 	 	 	
Common stock equivalents	 	 	 	472,233	 	 	 	
Diluted EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	13,830	 	 	 	$	0.42	 	
Loss from discontinued operations	 	(125	)	 	 	—	 	
Net income	 	$	13,705	 	32,791,765	 	$	0.42	 	

 	 	For the Third Quarter Ended September 28, 2003	 	
 	 	Income
(Numerator)	 	Shares
(Denominator)	 	Per Share
Amount	 	
 	 	(Amounts in thousands, except share and per share amounts)	 	
Basic EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	9,019	 	27,305,856	 	$	0.33	 	
Loss from discontinued operations	 	(114	)	 	 	—	 	
Net income	 	$	8,905	 	 	 	$	0.33	 	
Effect of dilutive securities	 	 	 	 	 	 	 	
Common stock equivalents	 	 	 	325,743	 	 	 	
Diluted EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	9,019	 	 	 	$	0.33	 	
Loss from discontinued operations	 	(114	)	 	 	(0.01	)	
Net income	 	$	8,905	 	27,631,599	 	$	0.32	 	
 
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 	 	For the Nine Months Ended September 26, 2004	 	
 	 	Income
(Numerator)	 	Shares
(Denominator)	 	Per Share
Amount	 	
 	 	(Amounts in thousands, except share and per share amounts)	 	
Basic EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	38,879	 	32,242,083	 	$	1.21	 	
Loss from discontinued operations	 	(220	)	 	 	(0.01	)	
Net income	 	$	38,659	 	 	 	$	1.20	 	
Effect of dilutive securities	 	 	 	 	 	 	 	
Common stock equivalents	 	 	 	430,518	 	 	 	
Diluted EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	38,879	 	 	 	$	1.19	 	
Loss from discontinued operations	 	(220	)	 	 	(0.01	)	
Net income	 	$	38,659	 	32,672,601	 	$	(1.18	)	

 	 	For the Nine Months Ended September 28, 2003	 	
 	 	Income
(Numerator)	 	Shares
(Denominator)	 	Per Share
Amount	 	
 	 	(Amounts in thousands, except share and per share amounts)	 	
Basic EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	26,635	 	27,195,784	 	$	0.98	 	
Loss from discontinued operations	 	(3,014	)	 	 	(0.11	)	
Net income	 	$	23,621	 	 	 	$	0.87	 	
Effect of dilutive securities	 	 	 	 	 	 	 	
Common stock equivalents	 	 	 	232,421	 	 	 	
Diluted EPS	 	 	 	 	 	 	 	
Income from continuing operations	 	$	26,635	 	 	 	$	0.97	 	
Loss from discontinued operations	 	(3,014	)	 	 	(0.11	)	
Net income	 	$	23,621	 	27,428,205	 	$	0.86	 	
 
Stock options to purchase 254,000 and 225,000 shares of common stock were outstanding at September 26, 2004, and September 28, 2003, respectively, but were not included in the computation of the year to date diluted earnings per share because the options’ exercise price was greater than the average market price of the common shares and therefore, the effect would have been antidilutive.
 
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7.                                       Segment Information
 
Under the criteria set forth in Financial Accounting Standards Board No.131 “Disclosure about Segments of an Enterprise and Related Information”, the Company operates in three geographic segments: North America, Europe, and China. Each of these segments is managed separately and has separate financial results that are reviewed by the Company’s chief operating decision-maker. Sales by region are based upon location of the entity recording the sale. The accounting policies for each segment are the same as those described in the summary of significant accounting policies.
 
The following is a summary of the Company’s significant accounts and balances by segment, reconciled to the consolidated totals:

 	 	North
America	 	Europe	 	China	 	Corporate(*)	 	Consolidated	 	
 	 	(in thousands)	 	
Third quarter ended September 26, 2004	 	 	 	 	 	 	 	 	 	 	 	
Net sales	 	$	145,056	 	$	62,386	 	$	7,401	 	$	—	 	$	214,843	 	
Operating income (loss)	 	19,775	 	8,023	 	1,277	 	(6,295	)	22,780	 	
Capital expenditures	 	2,919	 	1,177	 	1,278	 	—	 	5,374	 	
Depreciation and amortization	 	3,907	 	2,191	 	1,062	 	—	 	7,160	 	
 	 	 	 	 	 	 	 	 	 	 	 	
Third quarter ended September 28, 2003	 	 	 	 	 	 	 	 	 	 	 	
Net sales	 	$	121,001	 	$	50,211	 	$	4,297	 	$	—	 	$	175,509	 	
Operating income (loss)	 	18,735	 	6,453	 	(1,730	)	(5,481	)	17,977	 	
Capital expenditures	 	1,388	 	788	 	3,193	 	—	 	5,369	 	
Depreciation and amortization	 	3,131	 	1,627	 	604	 	—	 	5,362	 	
 	 	 	 	 	 	 	 	 	 	 	 	
Nine months ended September 26, 2004	 	 	 	 	 	 	 	 	 	 	 	
Net sales	 	$	415,198	 	$	183,400	 	$	19,585	 	$	—	 	$	618,183	 	
Operating income (loss)	 	58,451	 	23,460	 	1,276	 	(16,067	)	67,120	 	
Identifiable assets	 	528,903	 	294,521	 	78,511	 	—	 	901,935	 	
Long-lived assets	 	74,231	 	47,462	 	26,183	 	—	 	147,876	 	
Intangibles	 	26,173	 	9,771	 	2,744	 	—	 	38,688	 	
Capital expenditures	 	6,978	 	4,207	 	5,638	 	—	 	16,823	 	
Depreciation and amortization	 	11,516	 	6,815	 	3,018	 	—	 	21,349	 	
 	 	 	 	 	 	 	 	 	 	 	 	
Nine months ended September 28, 2003	 	 	 	 	 	 	 	 	 	 	 	
Net sales	 	$	352,118	 	$	149,109	 	$	13,486	 	$	—	 	$	514,713	 	
Operating income (loss)	 	50,704	 	15,623	 	(2,854	)	(13,246	)	50,227	 	
Identifiable assets	 	486,518	 	259,495	 	58,271	 	—	 	804,284	 	
Long-lived assets	 	74,036	 	43,623	 	21,624	 	—	 	139,283	 	
Intangibles	 	13,723	 	167	 	4,867	 	—	 	18,757	 	
Capital expenditures	 	4,350	 	2,497	 	7,220	 	—	 	14,067	 	
Depreciation and amortization	 	9,570	 	5,944	 	1,513	 	—	 	17,027	 	
 
The above operating segments are presented on a basis consistent with the presentation included in the Company’s December 31, 2003 financial statements included in the Annual Report on Form 10-K.

*Corporate expenses are primarily for costs incurred for compliance with Section 404 of the Sarbanes-Oxley Act of 2002, compensation expense, professional fees, including legal and audit expenses and benefit administration costs. These costs are not allocated to the geographic segments as they are viewed as corporate functions that support all activities.
 
The North American segment included U.S. net sales of $135,649,000 and $112,485,000 for the third quarter of 2004 and 2003, respectively, and $388,388,000 and $328,525,000 for the first nine months of 2004 and 2003, respectively. The North American segment also included U.S. long-lived assets of $69,483,000 and $69,035,000 at September 26, 2004 and September 28, 2003, respectively.
 
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8.                                       Other Comprehensive Income (Loss)
 
Other comprehensive income (loss) consist of the following:

 	 	Foreign
Currency
Translation	 	Pension
Adjustment	 	Cash Flow
Hedges	 	Accumulated Other
Comprehensive
Income (Loss)	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	
Balance December 31, 2002	 	$	(7,806	)	$	(3,988	)	$	—	 	$	(11,794	)	
Change in period	 	3,533	 	—	 	(221	)	3,312	 	
Balance March 30, 2003	 	(4,273	)	(3,988	)	(221	)	(8,482	)	
Change in period	 	9,564	 	—	 	(237	)	9,327	 	
Balance June 29, 2003	 	5,291	 	(3,988	)	(458	)	845	 	
Change in period	 	526	 	—	 	(66	)	460	 	
 	 	 	 	 	 	 	 	 	 	
Balance September 28, 2003	 	$	5,817	 	$	(3,988	)	$	(524	)	$	1,305	 	
 	 	 	 	 	 	 	 	 	 	
Balance December 31, 2003	 	$	19,588	 	$	(5,829	)	$	46	 	$	13,805	 	
Change in period	 	(5,585	)	—	 	(209	)	(5,794	)	
Balance March 28, 2004	 	14,003	 	(5,829	)	(163	)	8,011	 	
Change in period	 	(518	)	—	 	196	 	(322	)	
Balance June 27, 2004	 	13,485	 	(5,829	)	33	 	7,689	 	
Change in period	 	2,370	 	—	 	(36	)	2,334	 	
 	 	 	 	 	 	 	 	 	 	
Balance September 26, 2004	 	$	15,855	 	$	(5,829	)	$	(3	)	$	10,023	 	
 
Accumulated other comprehensive income (loss) in the Consolidated Balance Sheets as of September 26, 2004 and September 28, 2003 consists of cumulative translation adjustments, pension plan additional minimum liability, net of tax, and changes in the fair value of certain financial instruments that qualify for hedge accounting as required by FAS 133.  The Company’s total comprehensive income was as follows:

 	 	Third Quarter Ended	 	
 	 	September 26
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Net income	 	$	13,705	 	$	8,905	 	
Unrealized loss on derivative instruments, net of tax	 	(36	)	(66	)	
Foreign currency translation adjustments	 	2,370	 	526	 	
Total comprehensive income	 	$	16,039	 	$	9,365	 	

 	 	Nine Months Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Net income	 	$	38,659	 	$	23,621	 	
Unrealized loss on derivative instruments, net of tax	 	(49	)	(524	)	
Foreign currency translation adjustments	 	(3,733	)	13,623	 	
Total comprehensive income	 	$	34,877	 	$	36,720	 	
 
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9.                                       Acquisitions
 
On May 21, 2004, a wholly-owned subsidiary of the Company acquired 100% of the outstanding stock of McCoy Enterprises, Inc., which was subsequently renamed Orion Enterprises, Inc. (Orion), located in Kansas City, Kansas, for approximately $27,900,000 in cash. Orion distributes its products under the brand names of Orion, Flo Safe and Laboratory Enterprises. During the second quarter of 2004, the Company contracted for a third-party valuation to allocate the purchase price consistent with the guidelines of FAS 141. The preliminary allocation for goodwill was approximately $17,900,000 and approximately $4,300,000 was allocated to intangibles. The amount recorded as intangibles was primarily for trademarks that have indefinite lives.  Orion’s product lines include a complete line of acid resistant waste products, double containment piping systems, as well as a line of high purity pipes, fittings and faucets.
 
On April 16, 2004, a wholly-owned subsidiary of the Company acquired 90% of the stock of TEAM Precision Pipework, Ltd. (TEAM), located in Ammanford, West Wales, United Kingdom for approximately $17,200,000 in cash subject to final adjustments, if any, as stipulated in the purchase and sale agreement.  During the second quarter of 2004, the Company contracted for a third-party valuation to allocate the purchase price consistent with the guidelines of FAS 141. The preliminary allocation for goodwill was approximately $8,700,000 and approximately $10,100,000 was allocated to intangibles. The amount recorded as intangibles was primarily for the valuation of its customer base that has a 12- year life.  TEAM custom designs and manufactures manipulated pipe and hose tubing assemblies, which are utilized in the heating ventilation and air conditioning markets.  TEAM is a supplier to major original equipment manufacturers of air conditioning systems and several of the major European automotive air conditioning manufacturers.
 
On March 29, 2004, a wholly-owned subsidiary of the Company acquired the 40% equity interest in Taizhou Shida Plumbing Manufacturing Co., Ltd. (Shida), that had been held by the Company’s former joint venture partner for approximately $3,000,000 in cash and the payment of $3,500,000 in cash in connection with a know-how transfer and non-compete agreement.  As of September 26, 2004 the Company had paid $5,750,000 in cash.  The Company now owns 100% of Shida.  Prior to the acquisition the joint venture declared a dividend of $1,250,000 and based on the 40% ownership a $500,000 cash dividend was paid to its joint venture partner.  During the second quarter of 2004, the Company contracted for a third-party valuation to allocate the purchase price consistent with the guidelines of FAS 141. The preliminary allocation for goodwill was approximately $1,500,000 and approximately $2,050,000 was allocated to intangibles. The amount recorded as intangibles was primarily for the non-compete agreement that has a 3-year life.
 
On January 5, 2004, a wholly-owned subsidiary of the Company acquired substantially all of the assets of Flowmatic Systems, Inc. (Flowmatic), located in Dunnellon, Florida, for approximately $16,800,000 in cash.  During the first quarter of 2004, the Company contracted for a third-party valuation to allocate the purchase price consistent with the guidelines of FAS 141. The preliminary allocation for goodwill was approximately $5,300,000 and approximately $5,600,000 was allocated to intangibles. The amount recorded as intangibles was primarily for trademarks that have indefinite lives. Flowmatic designs and distributes a complete line of high quality reverse osmosis components and filtration equipment. Their product line includes stainless steel and plastic housings, filter cartridges, storage tanks, control valves, as well as complete reverse osmosis systems for residential and commercial applications.
 
On May 4, 2004, in connection with the Hunter Innovations, Inc. (Hunter) acquisition on May 9, 2002, the Company made a scheduled payment of approximately $3,750,000 for the second installment on the interest bearing notes issued to the Hunter sellers.
 
The acquisitions above have been accounted for utilizing the purchase method of accounting.  The pro-forma results have not been displayed, as the results are not significant to the Company’s consolidated results of operations.
 
10.                                Debt Issuance
 
On September 23, 2004, the Company entered into a revolving credit facility with a syndicate of banks (the Revolving Credit Facility).  The Revolving Credit Facility provides for multi-currency unsecured borrowings and stand-by letters of credit of up to $300,000,000 and expires in September 2009.  Borrowings outstanding under the Revolving Credit Facility bear interest at a fluctuating rate per annum equal to an applicable percentage equal to (i) in the case of Eurocurrency rate loans, the British Bankers Association LIBOR rate plus an applicable percentage, of up to 0.875%, based on the Company’s current consolidated leverage ratio and debt rating, or (ii) in the case of base rate loans and swing line loans, the higher of (a) the federal funds rate plus 0.5% and (b) the annual rate of interest announced by Bank of America, N.A. as its “prime rate.”  The average interest rate for borrowings under the revolving credit facility was approximately 2.8%. The Revolving Credit Facility replaced the unsecured revolving credit facility provided under the Revolving Credit Agreement dated February 28, 2002. The Revolving Credit Facility was used to pay off the debt that existed on the previous credit facility that was to expire in February 2005.  The Revolving Credit Facility includes operational and financial covenants customary for facilities of this type, including, among others, restrictions on additional indebtedness, liens and investments and maintenance of certain leverage ratios. As of September 26, 2004, the Company was in compliance with all covenants related to the Revolving Credit Facility.  At September 26, 2004, the total amount outstanding on the facility was $56,448,000 for euro-based borrowings and no amounts were outstanding for U.S. dollar borrowings. Additionally, at September 26, 2004, $32,141,000 was outstanding for stand-by letters of credit.
 
On July 1, 2003, the Company entered into an interest rate swap for a notional amount of €25,000,000 outstanding on the Company’s previous revolving credit facility.  The Company swapped the variable rate from the revolving credit facility, which is three month EURIBOR plus 0.7%, for a fixed rate of 2.3%.  The term of the swap is two years.  The Company has designated the swap as a hedging instrument using the cash flow method. The swap hedges the cash flows associated with interest payments on the first €25,000,000 of the Company’s revolving credit facility. The Company marks to market the changes in value of the swap through other comprehensive income. Any ineffectiveness has been recorded in income.  During the third quarter and first nine months of 2004, the EURIBOR rate has not fluctuated materially.  Amounts recorded have been immaterial for the three and nine months ending September 26, 2004 and September 28, 2003.
 
15

 
11.                                Contingencies and Environmental Remediation
 
A s disclosed in Part I, Item 1, “Product Liability, Environmental and Other Litigation Matters” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2003, the Company is a party to the litigation described as the James Jones litigation.
 
In the James Jones litigation, on July 27, 2004, the California Superior Court granted the Company’s motion for summary adjudication and ordered that Zurich American Insurance Company, or Zurich, indemnify the Company for its settlement with the three Phase I cities. In August 2003, the Company had made a payment of $11,000,000 for this settlement, and in April 2004, the Company received $11,000,000 from Zurich, subject to Zurich’s claims for reimbursement.  Zurich has filed a petition seeking appellate review of the July 27, 2004 decision, which the Company has opposed.  The $11,000,000 cash receipt is reflected as a liability of discontinued operations on the Company’s balance sheet, as of September 26, 2004. This amount was expensed to discontinued operations in prior periods.
 
The Company previously reported that the California Superior Court had made a summary adjudication ruling that Zurich must pay all reasonable defense costs incurred by the Company in the case of Armenta vs. James Jones Company (the “Armenta case”) since April 23, 1998 as well as the Company’s future defense costs in the Armenta case until its final resolution.  The Company further disclosed that Zurich had appealed this ruling and that its appeal was pending before the California Court of Appeal.  On August 24, 2004, the California Court of Appeal affirmed the summary adjudication ruling of the California Superior Court, which requires Zurich to pay the Company’s defense costs in the Armenta case.  On October 1, 2004, Zurich filed with the California Supreme Court a Petition for Review of this Court of Appeal decision.  The Company has opposed this Petition for Review, and management and counsel do not anticipate that the California Court of Appeal decision will be modified by the California Supreme Court.  However, Zurich’s obligation to pay future defense costs could be affected by future developments in the Armenta case.
 
In the Armenta case, on September 15, 2004, the California Superior Court granted the Company’s motion to dismiss claims based on purchases of James Jones Company products by developers, contractors or other private entities and granted the Company’s motion to deny the filing of a third amended complaint.  On September 14, 2004, the attorney for Armenta filed a new common law fraud claim in the California Superior Court against the Company and other Armenta case defendants on behalf of 47 cities, most of whom are named plaintiffs in the Armenta case.
 
16

 
12.                                Employee Benefit Plans
 
The Company sponsors funded and unfunded defined benefit pension plans covering substantially all of its domestic employees. Benefits are based primarily on years of service and employees’ compensation. The funding policy of the Company for these plans is to contribute an annual amount that does not exceed the maximum amount that can be deducted for federal income tax purposes. The Company uses a September 30 measurement date for its plans.
 
The components of net periodic benefit cost are as follows:

 	 	Third Quarter Ended	 	
 	 	September 26, 2004	 	September 28, 2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Service cost—benefits earned	 	$	630	 	$	505	 	
Interest costs on benefits obligation	 	767	 	697	 	
Estimated return on assets	 	(718	)	(570	)	
Transitional asset amortization	 	(12	)	(63	)	
Prior service cost amortization	 	60	 	55	 	
Net loss amortization	 	189	 	130	 	
Net periodic benefit cost	 	$	916	 	$	754	 	

 	 	Nine Months Ended	 	
 	 	September 26, 2004	 	September 28, 2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Service cost—benefits earned	 	$	1,830	 	$	1,516	 	
Interest costs on benefits obligation	 	2,287	 	2,091	 	
Estimated return on assets	 	(2,138	)	(1,711	)	
Transitional asset amortization	 	(137	)	(189	)	
Prior service cost amortization	 	170	 	164	 	
Net loss amortization	 	569	 	391	 	
Net periodic benefit cost	 	$	2,581	 	$	2,262	 	
 
Cash flows:
 
The information related to the Company’s pension funds cash flow is as follows:

 	 	Nine Months Ended	 	
 	 	September 26,
2004	 	September 28,
2003	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	
Employer contributions	 	$	81	 	$	84	 	

The Company is expected to contribute approximately $30,000 in the fourth quarter of 2004.
 
13.                                Related Party Transaction
 
In the first quarter of 2004, an agreement was executed with a relocation firm to purchase and sell the home of the Company’s chief executive officer, who is also a member of the Company’s board of directors.  The relocation firm purchased the home from the Company's chief executive officer, on the Company’s behalf, at a price based on the average of two fair market appraisals obtained by the Company.  An agreement to sell the home to a third party was executed during the third quarter.  Accordingly, the Company charged income from continuing operations for approximately $285,000 representing the difference between the original appraised value of the home and the final sale price to the third party.  Included in prepaid expenses and other assets at September 26, 2004, is $1,750,000 in assets held for sale, which represents the final sale price of the home to the third party.
 
17

 
Item 2 .    MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
 
Overview
 
The following discussion and analysis are provided to increase understanding of, and should be read in conjunction with, the accompanying unaudited consolidated financial statements and notes.
 
We are a leading supplier of products for use in the water quality, water safety, water flow control and water conservation markets in both North America and Europe. For 130 years, we have designed and manufactured products that promote the comfort and safety of people and the quality and conservation for water used in commercial, residential and light industrial applications. We earn revenue and income almost exclusively from the sale of our products. Our principal product lines include:
 
•                                           backflow preventers for preventing contamination of potable water caused by reverse flow within water supply lines and fire protection systems;
•                                           a wide range of water pressure regulators for both commercial and residential applications;
•                                           water supply and drainage products for commercial and residential applications;
•                                           temperature and pressure relief valves for water heaters, boilers and associated systems;
•                                           point-of-use water filtration and reverse osmosis systems for both commercial and residential applications;
•                                           thermostatic mixing valves for tempering water in commercial and residential applications; and
•                                           systems for under-floor radiant applications.
 
Our business is reported in three geographic segments, North America, Europe and China. We distribute our products through three primary distribution channels, wholesale, do-it-yourself (DIY) and original equipment manufacturers (OEMs).  Interest rates have a significant indirect effect on the demand for our products due to the effect such rates have on the number of new residential and commercial construction starts and remodeling projects.  Non-residential and commercial construction starts have a significant impact on our level of sales and earnings. In the third quarter of 2004, organic sales in North America increased in both our wholesale and DIY markets by approximately 9% and 8%, respectively, over the comparable period of last year.  Also in the third quarter of 2004, organic sales in Europe increased by approximately 9% over the comparable period of last year despite a weak European economy.  An additional factor that has had a significant effect on our sales is fluctuations in foreign currencies, as a significant portion of our sales and certain portions of our costs, assets and liabilities are denominated in currencies other than the U.S. dollar. In the third quarter of 2004, our sales increased approximately 3% over the comparable period last year primarily due to the euro appreciating against the U.S. dollar.
 
We believe that the most significant factors relating to our future growth include our ability to continue to make selective acquisitions, both in our core markets as well as new complementary markets, regulatory requirements relating to the quality and conservation of water, increased demand for clean water and continued enforcement of plumbing and building codes. We have completed sixteen acquisitions since divesting our industrial and oil and gas business in 1999. Our acquisition strategy focuses on businesses that manufacture preferred brand name products that address our themes of water quality, water safety, water conservation and water flow control. We target businesses that will provide us with one or more of the following: an entry into new markets, an increase in shelf space with existing customers, a new or improved technology or an expansion of the breadth of our water quality, water conservation, water safety and water flow control products for the residential and commercial markets.
 
Products representing a majority of our sales are subject to regulatory standards and code enforcement, which typically require that these products meet stringent performance criteria. Together with our commissioned manufacturers’ representatives, we have consistently advocated the development and enforcement of such plumbing codes. We are focused on maintaining stringent quality control and testing procedures at each of our manufacturing facilities in order to manufacture products in compliance with code requirements and take advantage of the resulting demand for compliant products. We believe that significant product development, product testing capability and investment in plant and equipment is needed to manufacture products in compliance with code requirements, which represents a significant barrier to entry for competitors. We believe there is an increasing demand among consumers for products to ensure water quality, which creates growth opportunities for our products.
 
We require substantial amounts of raw materials to produce our products, including bronze, brass, cast iron, steel and plastic, and substantially all of the raw materials we require are purchased from outside sources. We have experienced increases in the costs of bronze, brass, cast iron and steel.  In addition, due to the recent cost increase in crude oil we are beginning to experience increases in the cost of plastic.  We are currently evaluating the impact of the recent cost increase in oil and we are planning certain price increases to offset the effect of this increase. The price of copper has risen approximately 50% since September 28, 2003 and approximately 32% since December 31, 2003. Bronze and brass are copper based alloys.  Since December 31, 2003, we have experienced cost increases in bronze and brass of approximately 44% and 24%, respectively. Additionally, since December 31, 2003, we have experienced surcharge cost increases in cast iron and steel of 10% and 13%, respectively.  These raw material costs increases have caused our consolidated cost of goods sold to increase by approximately 3% for the first nine months of 2004. However, certain product lines had associated cost material increases that were significantly higher than our consolidated total.
 
18

 
A significant risk we face is our ability to deal effectively with increases in raw material costs.  We manage this risk by monitoring related market prices, working with our suppliers to achieve the maximum level of stability in their costs and related pricing, seeking alternative supply sources when necessary and passing increases in costs to our customers, to the maximum extent possible, when they occur.  Additionally, on a limited basis, we use commodity futures contracts to manage this risk, although we do not currently have any such contracts.  In response to recent cost increases, we have implemented price increases for some of the products which have become more expensive to manufacture due to the increases in raw material costs. As a result of these price increases we believe we have been successful in offsetting most, if not all, of the cost increases.  We are not able to predict whether or for how long these cost increases will continue. If these cost increases continue and we are not able to reduce or eliminate the effect of the cost increases by reducing production costs or implementing price increases, our profit margins could decrease.
 
Another significant risk we face in all areas of our business is competition. We consider brand preference, engineering specifications, plumbing code requirements, price, technological expertise, delivery times and breadth of product offerings to be the primary competitive factors. As mentioned previously, we believe that significant product development, product testing capability and investment in plant and equipment is needed to manufacture products in compliance with code requirements, which represents a significant barrier to entry for competitors. We are committed to maintaining our capital equipment at a level consistent with current technologies, and thus we spent approximately $16,800,000 in the first nine months of 2004, and expect to invest approximately $2,700,000 in the fourth quarter of 2004. We are also committed to expanding our manufacturing capacity in lower cost countries such as China, Tunisia and Bulgaria. These manufacturing plant relocations and consolidations are an important part of our ongoing commitment to reduce production costs.
 
Recent Developments
 
On September 23, 2004, we entered into a five-year, $300,000,000, multi-currency Revolving Line of Credit with a syndicate of banks, which replaced our prior credit facility.  The new Credit Facility will provide financing requirements for our North American, European and Asian based operations.  We expect to use the Credit Facility to fund acquisitions, as well as to fund working capital requirements, and for general corporate purposes.
 
On September 28, 2004, we completed the planned increase of our ownership in Stern Rubinetti.  We increased our stake in this company from 51% to 85%.  The price paid for this additional 34% was €714,000.  We have an option to acquire the remaining 15% from the minority shareholders for €315,000. The option becomes exercisable on January 1, 2005.
 
In October 2004, we implemented a European manufacturing restructuring plan to consolidate certain manufacturing plants in Europe.  We expect to record a pre-tax charge for severance and other costs of approximately $700,000 of which $450,000 is expected to be recorded in the fourth quarter of 2004 with the remainder to be completed in the first quarter of 2005.
 
Acquisitions
 
On May 21, 2004, we acquired 100% of the outstanding stock of McCoy Enterprises, Inc., which we subsequently renamed Orion Enterprises, Inc. (Orion), located in Kansas City, Kansas, for approximately $27,900,000 in cash. Orion distributes its products under the brand names of Orion, Flo Safe and Laboratory Enterprises. Their product line includes a complete line of acid resistant waste products, double containment piping systems, as well as a line of high purity pipes, fittings and faucets.
 
On April 16, 2004, we acquired 90% of the stock of TEAM Precision Pipework, Ltd. (TEAM), located in Ammanford, West Wales, United Kingdom for approximately $17,200,000 in cash subject to final adjustments, if any, as stipulated in the purchase and sale agreement.  TEAM custom designs and manufactures manipulated pipe and hose tubing assemblies, which are utilized in the heating, ventilation and air conditioning markets. TEAM is a supplier to major original equipment manufacturers of air conditioning systems and several of the major European automotive air conditioning manufacturers.
 
On March 29, 2004, we acquired the 40% equity interest in Taizhou Shida Plumbing Manufacturing Co., Ltd. (Shida), that had been held by our former joint venture partner for approximately $3,000,000 in cash and the payment of $3,500,000 in cash in connection with a know-how transfer and non-compete agreement.  We now own 100% of Shida.
 
On January 5, 2004, we acquired substantially all of the assets of Flowmatic Systems, Inc. (Flowmatic), located in Dunnellon, Florida, for approximately $16,800,000 in cash. Flowmatic designs and distributes a complete line of high quality reverse osmosis components and filtration equipment. Their product line includes stainless steel and plastic housings, filter cartridges, storage tanks, control valves, as well as complete reverse osmosis systems for residential and commercial applications.
 
On July 30, 2003, we acquired Giuliani Anello S.r.l. (Anello), located in Cento (Ferrara) Bologna, Italy, for approximately $10,600,000 in cash net of acquired cash of $1,400,000.  Anello manufactures and distributes valves and filters utilized in heating applications including strainer filters, solenoid valves, flow stop valves, stainless steel water filter elements and steam cleaning filters.
 
On April 18, 2003, we acquired Martin Orgee UK Ltd. (Martin Orgee), located in Kidderminster, West Midlands, United Kingdom for approximately $1,600,000 in cash.  Martin Orgee distributes a line of plumbing and heating products to the wholesale, commercial and OEM markets in the United Kingdom and Southern Ireland.  Martin Orgee also assembles pumping groups for under-floor radiant heat systems.
 
The acquisitions above have been accounted for utilizing the purchase method of accounting.  The pro-forma results have not been displayed, as the combined results of acquired companies are not significant to our consolidated financial position or results of operation.
 
19

 
Results of Operations
 
Third Quarter Ended September 26, 2004 Compared to Third Quarter Ended September 28, 2003
 
Net Sales.   Our business is reported in three geographic segments: North America, Europe and China. Our net sales in each of these segments for each of the third quarters ended 2004 and 2003 were as follows:

 	 	Third Quarter Ended
September 26, 2004	 	Third Quarter Ended
September 28, 2003	 	 	 	% Change to Consolidated	 	
 	 	Net Sales	 	% Sales	 	Net Sales	 	% Sales	 	Change	 	Net Sales	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	
North America	 	$	145,056	 	67.5	%	$	121,001	 	68.9	%	$	24,055	 	13.7	%	
Europe	 	62,386	 	29.0	 	50,211	 	28.6	 	12,175	 	6.9	 	
China	 	7,401	 	3.5	 	4,297	 	2.5	 	3,104	 	1.8	 	
Total	 	$	214,843	 	100	%	$	175,509	 	100	%	$	39,334	 	22.4	%	
 
The increase in consolidated net sales is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	17,987	 	10.2	%	
Foreign exchange	 	5,938	 	3.4	 	
Acquisitions	 	10,756	 	6.1	 	
Other - FIN 46R	 	4,653	 	2.7	 	
Total	 	$	39,334	 	22.4	%	
 
The increase in net sales in North America is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Net Sales	 	% Change
to Segment
Net Sales	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	10,462	 	6.0	%	8.6	%	
Foreign exchange	 	582	 	0.3	 	0.5	 	
Acquisition	 	8,358	 	4.8	 	6.9	 	
Other – FIN 46R	 	4,653	 	2.6	 	3.8	 	
Total	 	$	24,055	 	13.7	%	19.8	%	
 
The internal growth in net sales in North America is due to increased unit sales into both the wholesale and DIY markets.  Our wholesale market for the third quarter of 2004, excluding the sales from the acquisitions of Orion and Flowmatic, grew by 9.4% compared to the third quarter of 2003, primarily due to increased sales of backflow preventor units, as well as in our plumbing and under-floor radiant heating product lines.  Our sales into the North American DIY market for the third quarter of 2004, excluding Jameco International LLC (Jameco) sales, increased by 8.3% compared to the third quarter of 2003 primarily due to increased sales of our brass and tubular products.
 
The increase in net sales due to foreign exchange in North America is due to the Canadian dollar appreciating against the U.S. dollar. We cannot predict whether the Canadian dollar will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net sales.
 
The acquired growth in net sales in North America is due to the inclusion of net sales of Flowmatic, acquired on January 5, 2004, and Orion, acquired on May 21, 2004.  We expect these acquisitions to have a positive impact on sales for the remainder of the year.
 
Included in “Other FIN-46R” for North America are sales of $4,653,000 from Jameco. In October 2003, we determined that our 49% minority interest in Jameco qualified as a variable interest in a variable interest entity under Financial Accounting Standards Board Interpretation No. 46 “Consolidation of Variable Interest Entities – Revised” (FIN 46R) and, as we are considered the primary beneficiary, the results of Jameco are consolidated into our North American results.
 
19

 
The increase in net sales in Europe is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Net Sales	 	% Change to
Segment
Net Sales	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	4,421	 	2.5	%	8.8	%	
Foreign exchange	 	5,356	 	3.0	 	10.7	 	
Acquisitions	 	2,398	 	1.4	 	4.7	 	
Total	 	$	12,175	 	6.9	%	24.2	%	
 
The internal growth in net sales in Europe is primarily attributable to market share gains in the European wholesale and OEM markets.
 
The increase in net sales due to foreign exchange in Europe is primarily due to the appreciation of the euro against the U.S. dollar.  We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net sales.
 
The acquired growth in net sales in Europe is due to the inclusion of the net sales of TEAM, acquired on April 16, 2004.
 
The increase in net sales in China of $3,104,000 is primarily attributable to increased sales rebates and returns recorded in the third quarter of 2003 and to increased unit shipments in the domestic Chinese market during the third quarter of 2004.
 
Gross Profit.   Gross profit for the third quarter of 2004 increased $15,642,000, or 26.3%, compared to the third quarter of 2003. The increase in gross profit is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	9,909	 	16.7	%	
Foreign exchange	 	1,837	 	3.1	 	
Acquisitions	 	3,872	 	6.5	 	
Other – FIN 46R	 	647	 	1.1	 	
Other – Restructuring	 	(623	)	(1.1	)	
Total	 	$	15,642	 	26.3	%	
 
The internal growth is primarily due to a $5,351,000 increase in internal gross profit in the North American segment.  This increase is primarily due to an improved sales mix due to increased sales volume in the North American wholesale market, which generally has higher gross margins than the North American retail market, and to benefits resulting from our completed manufacturing restructuring projects and outsourcing.  The European segment increased internal gross profit by $1,171,000, primarily due to growth in sales to European wholesale customers and to benefits resulting from our completed manufacturing restructuring projects.  The China segment increased gross profit by $3,573,000 primarily due to increased sales volumes and improved manufacturing efficiencies at our wholly owned manufacturing plant in Tianjin. The increase in gross profit from foreign exchange is primarily due to the appreciation of the euro and Canadian dollar against the U.S. dollar.  The increase in gross profit from acquisitions is primarily due to the inclusion of gross profit from Orion, TEAM and Flowmatic.
 
Selling, General and Administrative Expenses.   Selling, general and administrative expense, or SG&A expense, for the third quarter of 2004 increased $10,839,000, or 26.2%, compared to the third quarter of 2003.  The increase in SG&A expense is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	6,496	 	15.7	%	
Foreign exchange	 	1,108	 	2.7	 	
Acquisitions	 	2,477	 	6.0	 	
Other – FIN 46R	 	758	 	1.8	 	
Total	 	$	10,839	 	26.2	%	
 
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The internal increase in SG&A expense is primarily due to increased variable selling expenses due to increased sales volume and costs incurred for compliance with Section 404 of the Sarbanes-Oxley Act of 2002 (“SOX”).  Variable selling expense consists primarily of commissions and freight expenses. For the third quarter of 2004, commission expense and selling expense were approximately 4.2% and 11.1%, respectively, of sales. These expense percentages are consistent with the comparable quarter in 2003, as we expect these costs to move relative to our sales volume.  For the third quarter of 2004, we recorded approximately $1,200,000 for SOX related expenses.  We currently estimate an additional $3,000,000 of costs associated with SOX in the last quarter of 2004.  Our SG&A expense, as a percent of sales for the third quarter of 2004 was 24.3% compared to 23.6% in the same period in 2003.
 
Operating Income.   Operating income by geographic segment for each of the third quarters ended 2004 and 2003 were as follows:

 	 	 	 	 	 	 	 	% Change to	 	
 	 	Third Quarter Ended	 	 	 	Consolidated	 	
 	 	September 26,	 	September 28,	 	 	 	Operating	 	
 	 	2004	 	2003	 	Change	 	Income	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	
North America	 	$	19,775	 	$	18,735	 	$	1,040	 	5.8	%	
Europe	 	8,023	 	6,453	 	1,570	 	8.7	 	
China	 	1,277	 	(1,730	)	3,007	 	16.7	 	
Corporate	 	(6,295	)	(5,481	)	(814	)	(4.5	)	
Total	 	$	22,780	 	$	17,977	 	$	4,803	 	26.7	%	
 
The increase in operating income is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	3,413	 	19.0	%	
Foreign exchange	 	729	 	4.0	 	
Acquisitions	 	1,395	 	7.8	 	
Other – FIN 46R	 	(111	)	(0.6	)	
Other – Restructuring	 	(623	)	(3.5	)	
Total	 	$	4,803	 	26.7	%	
 
The increase in operating income in North America is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Operating Income	 	% Change to
Segment
Operating Income	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	686	 	3.8	%	3.7	%	
Foreign exchange	 	90	 	0.5	 	0.5	 	
Acquisition	 	884	 	4.9	 	4.7	 	
Other – FIN 46R	 	(111	)	(0.6	)	(0.6	)	
Other – Restructuring	 	(509	)	(2.8	)	(2.7	)	
Total	 	$	1,040	 	5.8	%	5.6	%	
 
The internal growth is primarily due to our increased gross profit in the wholesale market partially offset by increased net SG&A expense.  In 2004, we have experienced raw material cost increases that we have been able to recover by implementing price increases in some of our products. For the third quarter of 2004, we recorded $567,000 for costs associated with our manufacturing restructuring plan compared to $58,000 in the third quarter of 2003.  In the second quarter of 2004, we reevaluated our manufacturing restructuring plan, primarily due to increased sales volume.  As a result, we postponed the expected closure date of a U.S. manufacturing plant and have extended the estimated useful lives of certain manufacturing equipment due to revised production requirements. We expect to record an additional $800,000 in the fourth quarter of 2004 for manufacturing restructuring costs. The acquired growth is due to the inclusion of operating income from Orion and Flowmatic.
 
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The increase in operating income in Europe is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Operating Income	 	% Change to
Segment
Operating Income	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	534	 	3.0	%	8.3	%	
Foreign exchange	 	639	 	3.5	 	9.9	 	
Acquisitions	 	511	 	2.8	 	7.9	 	
Other – Restructuring	 	(114	)	(0.6	)	(1.8	)	
Total	 	$	1,570	 	8.7	%	24.3	%	
 
The internal growth is primarily due to increased gross profit from the increased sales volume in the wholesale market partially offset by increased SG&A expense. We did not record any manufacturing restructuring or other costs in the third quarter of 2004 compared to a net recovery of $114,000 for the comparable period in 2003.  We anticipate recording $450,000 in the fourth quarter of 2004 for manufacturing restructuring costs in 2004 for our European operations. The increase in operating income from foreign exchange is primarily due to the appreciation of the euro against the U.S. dollar.  We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our operating income.  The acquired growth is due to the inclusion of operating income from TEAM.
 
The increase in operating income in China of $3,007,000 is attributable to increased sales rebates and returns recorded in the third quarter of 2003, which did not repeat in 2004, improved manufacturing efficiencies associated with our wholly-owned manufacturing plant in Tianjin, which in 2003 was in a start up phase and to internal growth primarily due to increased sales volumes.
 
The decrease in operating income in Corporate of $814,000 is primarily attributable to costs incurred for compliance with SOX.
 
Interest Expense.   Interest expense for the third quarter of 2004 decreased $1,018,000, or 27.8%, compared to the third quarter of 2003, primarily due to overlapping interest charges on three separate senior note issues that were outstanding in 2003, while only two senior note issues remain outstanding in 2004, partially offset by the favorable amortization from our interest rate swap and increased indebtedness on our $125,000,000 senior notes.  On September 1, 2001, we entered into an interest rate swap with respect to our $75,000,000 8 3/8% notes due December 2003. The swap converted the interest from fixed to floating.  On August 5, 2002, we sold the swap and received $2,315,000 in cash.  In the third quarter of 2003, we reduced interest expense by $393,000 by amortizing the adjustment to the fair value of the swap. The amortization of the swap was completed upon repayment of the $75,000,000 8 3/8% notes on December 1, 2003. On May 15, 2003, we refinanced our $75,000,000 8 3/8% notes with proceeds from the issuance of $125,000,000 senior notes.
 
On July 1, 2003, we entered into an interest rate swap for a notional amount of €25,000,000 outstanding on our prior revolving credit facility. We swapped the variable rate from the revolving credit facility, which is three month EURIBOR plus 0.7%, for a fixed rate of 2.3%. For the third quarter of 2004, the EURIBOR rate has not fluctuated materially and the impact of swap was immaterial to the overall interest expense.
 
Income Taxes.  Our effective tax rate for continuing operations for the third quarter of 2004 decreased to 32.0% from 40.1% for the third quarter of 2003.  This decrease is primarily due to one-time tax benefits relating to prior years state tax credits that reduced the third quarter 2004 rate by 5.8% compared to the comparable period last year.  Also our China operations generated low taxed earnings in the third quarter of 2004, whereas in 2003, they generated losses for which we could not take a tax benefit.
 
Income From Continuing Operations.   Income from continuing operations for the third quarter of 2004 increased $4,811,000, or 53.3%, to $13,830,000 or $0.42 per common share, from $9,019,000 or $0.33 per common share, for the third quarter of 2003, in each case on a diluted basis. The appreciation of the euro against the U.S. dollar resulted in a positive impact on income from continuing operations of $0.01 per share for the third quarter of 2004 compared to the comparable period last year. We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net income.  Income from continuing operations for the third quarter of 2004 and 2003 includes costs incurred for our manufacturing restructuring plan of $349,000, or $0.01 per share and a net recovery of $36,000, or $0.00 per share, respectively.
 
Loss From Discontinued Operations.   We recorded a charge net of tax to discontinued operations for the third quarter of 2004 of $125,000, or ($0.00) per common share and $114,000, or ($0.01) per common share, for the third quarter of 2003, in each case, on a diluted basis. These charges are attributable to legal fees associated with the James Jones litigation, as described in Part I, Item 1, “Business-Product Liability, Environmental and Other Litigation Matters” in our Annual Report on Form 10-K for the year ended December 31, 2003 and in this Quarterly Report in Part II, Item 1, “Legal Proceedings.”
 
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Nine Months Ended September 26, 2004 Compared to Nine Months Ended September 28, 2003
 
Net Sales.   Our business is reported in three geographic segments: North America, Europe and China. Our net sales in each of these segments for each of the first nine months of 2004 and 2003 were as follows:

 	 	Nine Months Ended
September 26, 2004	 	Nine Months Ended
September 28, 2003	 	 	 	% Change to
Consolidated	 	
 	 	Net Sales	 	% Sales	 	Net Sales	 	% Sales	 	Change	 	Net Sales	 	
 	 	(in thousands)	 	
North America	 	$	415,198	 	67.1	%	$	352,118	 	68.4	%	$	63,080	 	12.2	%	
Europe	 	183,400	 	29.7	 	149,109	 	29.0	 	34,291	 	6.7	 	
China	 	19,585	 	3.2	 	13,486	 	2.6	 	6,099	 	1.2	 	
Total	 	$	618,183	 	100	%	$	514,713	 	100	%	$	103,470	 	20.1	%	
 
The increase in consolidated net sales is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	42,531	 	8.3	%	
Foreign exchange	 	17,832	 	3.5	 	
Acquisitions	 	28,077	 	5.4	 	
Other - FIN 46R	 	15,030	 	2.9	 	
Total	 	$	103,470	 	20.1	%	
 
The increase in net sales in North America is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Net Sales	 	% Change
to Segment
Net Sales	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	28,419	 	5.5	%	8.1	%	
Foreign exchange	 	1,735	 	0.3	 	0.5	 	
Acquisition	 	17,896	 	3.5	 	5.1	 	
Other – FIN 46R	 	15,030	 	2.9	 	4.2	 	
Total	 	$	63,080	 	12.2	%	17.9	%	

The internal growth in net sales in North America is primarily due to increased unit sales into both the wholesale and DIY markets.  Our wholesale market for the first nine months of 2004, excluding the acquisitions of Flowmatic and Orion sales, grew by 9.5% compared to the first nine months of 2003 primarily due to increased sales of backflow prevention units and increased sales in our plumbing and under-floor radiant heating product lines.  Our sales into the North American DIY market for the first nine months of 2004, excluding Jameco sales, increased by 6.2% compared to the first nine months of 2003.
 
The increase in net sales due to foreign exchange in North America is due to the Canadian dollar appreciating against the U.S. dollar. We cannot predict whether the Canadian dollar will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net sales.
 
The acquired growth in net sales in North America is due to the inclusion of net sales of Flowmatic, acquired on January 5, 2004 and Orion, acquired on May 21, 2004.  We expect these acquisitions to have a positive impact on sales for the remainder of the year.
 
Included in “Other-FIN 46R” for North America are sales of $15,030,000 from Jameco. In October 2003, we determined that our 49% minority interest in Jameco qualified as a variable interest in a variable interest entity under Financial Accounting Standards Board Interpretation No. 46 “Consolidation of Variable Interest Entities – Revised” (FIN 46R) and, as we are considered the primary beneficiary, the results of Jameco are consolidated into our North American results.
 
The increase in net sales in Europe is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Net Sales	 	% Change
to Segment
Net Sales	 	
Internal growth	 	$	8,013	 	1.6	%	5.4	%	
Foreign exchange	 	16,097	 	3.1	 	10.8	 	
Acquisitions	 	10,181	 	2.0	 	6.8	 	
Total	 	$	34,291	 	6.7	%	23.0	%	
 
The internal growth in net sales in Europe is primarily due to increased sales into the European OEM market and market share gains in the European wholesale markets.
 
The increase in net sales due to foreign exchange in Europe is primarily due to the appreciation of the euro against the U.S. dollar.  We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net sales.
 
The acquired growth in net sales in Europe is due to the inclusion of the net sales of Martin Orgee, acquired on April 18, 2003, Anello, acquired on July 30, 2003 and TEAM, acquired on April 16, 2004.
 
The increase in net sales in China of $6,099,000 is primarily attributable to adjustments made in 2003 for previously recorded sales
 
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and increased sales rebates and returns recorded at our TWT joint venture located in Tianjin, China, that did not repeat in 2004, and to internal growth primarily due to increased domestic shipments at Shida located in Taizhou, China.
 
Gross Profit.   Gross profit for the first nine months of 2004 increased $43,517,000 or 25.1%, compared to the first nine months of 2003. The increase in gross profit is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	26,606	 	15.3	%	
Foreign exchange	 	5,644	 	3.3	 	
Acquisitions	 	10,347	 	6.0	 	
Other – FIN 46R	 	2,311	 	1.3	 	
Other – Restructuring	 	(1,391	)	(0.8	)	
Total	 	$	43,517	 	25.1	%	
 
The internal growth is primarily due to a $17,820,000 increase in internal gross profit in the North American segment. This increase is primarily due to improved sales mix due to increased sales volume in the North American wholesale market, which typically generates higher gross margins than the North American retail market and to benefits resulting from our completed manufacturing restructuring projects and outsourcing.  The European segment increased internal gross profit by $4,036,000 primarily due to sales growth with European OEM and wholesale customers and to benefits resulting from our completed manufacturing restructuring projects.  The China segment increased gross profit by $5,143,000 primarily due to inventory write-downs, increased sales rebates and returns and other net adjustments recorded in 2003 and to increased sales volumes at Shida and improved manufacturing efficiencies at our wholly owned manufacturing plant in Tianjin in 2004 . The increase in gross profit from foreign exchange is primarily due to the appreciation of the euro and Canadian dollar against the U.S. dollar.  The increase in gross profit from acquisitions is primarily due to the inclusion of gross profit from Orion, TEAM, Flowmatic, Martin Orgee and Anello.
 
The increase in gross profit was partially offset by increased manufacturing restructuring and other costs.  For the first nine months of 2004 we charged $2,304,000 of accelerated depreciation to cost of sales compared to $913,000 of accelerated depreciation and other costs for the first nine months of 2003.
 
Selling, General and Administrative Expenses.   Selling, general and administrative expense, or SG&A expense, for the first nine months of 2004 increased $26,738,000, or 21.7%, compared to the first nine months of 2003.  The increase in SG&A expense is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	15,271	 	12.4	%	
Foreign exchange	 	3,490	 	2.8	 	
Acquisitions	 	5,410	 	4.4	 	
Other – FIN 46R	 	2,567	 	2.1	 	
Total	 	$	26,738	 	21.7	%	
 
The internal increase in SG&A expense is primarily due to increased variable selling expense due to increased sales volume and costs incurred for compliance with SOX partially offset by a reserve reduction due to a favorable ruling in one of our legal cases. For the first nine months of 2004, commission expense and selling expense were approximately 4.3% and 11.5%, respectively, of sales. These expense percentages are consistent with the comparable period in 2003, as we expect these costs to move relative to our sales volume.  For the first nine months of 2004, we recorded approximately $2,900,000 for SOX related expenses.  We currently estimate an additional $3,000,000 of costs associated with SOX for the fourth quarter of 2004.  Our SG&A expense as a percent of sales for the first nine months of 2004 remained relatively constant at 24.3% compared to 24.0% for the same period in 2003.
 
Operating Income.   Operating income by geographic segment for each of the first nine months of 2004 and 2003 were as follows:

 	 	 	 	 	 	 	 	% Change to	 	
 	 	Nine Months Ended	 	 	 	Consolidated	 	
 	 	September 26,	 	September 28,	 	 	 	Operating	 	
 	 	2004	 	2003	 	Change	 	Income	 	
 	 	(in thousands)	 	
 	 	 	 	 	 	 	 	 	 	
North America	 	$	58,451	 	$	50,704	 	$	7,747	 	15.4	%	
Europe	 	23,460	 	15,623	 	7,837	 	15.6	 	
China	 	1,276	 	(2,854	)	4,130	 	8.2	 	
Corporate	 	(16,067	)	(13,246	)	(2,821	)	(5.6	)	
Total	 	$	67,120	 	$	50,227	 	$	16,893	 	33.6	%	
 
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The increase in operating income is attributable to the following:

 	 	(in thousands)	 	% Change	 	
 	 	 	 	 	 	
Internal growth	 	$	11,335	 	22.6	%	
Foreign exchange	 	2,154	 	4.3	 	
Acquisitions	 	4,937	 	9.8	 	
Other – FIN 46R	 	(256	)	(0.5	)	
Other – Restructuring	 	(1,277	)	(2.6	)	
Total	 	$	16,893	 	33.6	%	
 
The increase in operating income in North America is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Operating Income	 	% Change to
Segment
Operating Income	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	7,628	 	15.2	%	15.0	%	
Foreign exchange	 	251	 	0.5	 	0.5	 	
Acquisition	 	2,267	 	4.5	 	4.5	 	
Other – FIN 46R	 	(256	)	(0.5	)	(0.5	)	
Other – Restructuring	 	(2,143	)	(4.3	)	(4.2	)	
Total	 	$	7,747	 	15.4	%	15.3	%	
 
The internal growth is primarily due to our increased gross profit in the wholesale market, benefits resulting from our completed manufacturing restructuring projects and outsourcing, partially offset by increased net SG&A expense.  In 2004, we have experienced raw material cost increases, which we have been able to recover by implementing price increases on some of our products.  For the first nine months of 2004, we recorded $2,304,000 for costs associated with our manufacturing restructuring plan compared to $161,000 for the first nine months of 2003.  In the second quarter of 2004, we reevaluated our manufacturing restructuring plan, primarily due to increased sales volume.  As a result, we postponed our expected closure date of a U.S. manufacturing plant and have extended the estimated useful lives of certain manufacturing equipment due to revised production requirements. We now expect to record an additional $800,000 in the fourth quarter of 2004 for manufacturing restructuring expenses.  The acquired growth is due to the inclusion of operating income from Orion and Flowmatic.
 
The increase in operating income in Europe is attributable to the following:

 	 	(in thousands)	 	% Change to
Consolidated
Operating Income	 	% Change to
Segment
Operating Income	 	
 	 	 	 	 	 	 	 	
Internal growth	 	$	2,398	 	4.8	%	15.3	%	
Foreign exchange	 	1,903	 	3.8	 	12.2	 	
Acquisitions	 	2,670	 	5.3	 	17.1	 	
Other – Restructuring	 	866	 	1.7	 	5.6	 	
Total	 	$	7,837	 	15.6	%	50.2	%	
 
The internal growth is primarily due to increased gross profit from the increased sales volume in the OEM and wholesale market and to benefits resulting from our previous manufacturing restructuring projects, partially offset by increased SG&A expense. We did not record any manufacturing restructuring or other costs for the first nine months of 2004 compared to $866,000 for the comparable period in 2003.  We anticipate recording $450,000 in the fourth quarter for manufacturing restructuring costs for our European operations. The increase in operating income from foreign exchange is primarily due to the appreciation of the euro against the U.S. dollar.  We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our operating income.
 
The increase in operating income in China of $4,130,000 is attributable to inventory write-downs and other net adjustments recorded in 2003, that did not repeat in 2004, and to internal growth primarily due to increased sales volumes and improved manufacturing efficiencies associated with our wholly-owned manufacturing plant in Tianjin, which in 2003 was in a start up phase.
 
The decrease in operating income in Corporate of $2,821,000 is primarily attributable to costs incurred for compliance with SOX.
 
Interest Expense.   Interest expense decreased $569,000, or 6.6%, for the first nine months of 2004 compared to the first nine months of 2003, primarily due to overlapping interest charges on three separate senior note issues that were outstanding in 2003, while only two senior note issues remain outstanding in 2004, partially offset by the elimination of favorable amortization from our interest rate swap, increased indebtedness on our $125,000,000 senior notes and decreased indebtedness under our U.S. revolving credit facility.  On September 1, 2001, we entered into an interest rate swap with respect to our
 
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$75,000,000 8 3/8% notes due December 2003. The swap converted the interest from fixed to floating.  On August 5, 2002, we sold the swap and received $2,315,000 in cash.  In the first nine months of 2003, we reduced interest expense by $1,179,000 by amortizing the adjustment to the fair value of the swap. The amortization of the swap was completed upon repayment of the $75,000,000 8 3/8% notes on December 1, 2003. On May 15, 2003, we refinanced our $75,000,000 8 3/8% notes with proceeds from the issuance of $125,000,000 senior notes.
 
On July 1, 2003, we entered into an interest rate swap for a notional amount of €25,000,000 outstanding on our prior revolving credit facility. We swapped the variable rate from the revolving credit facility, which is three month EURIBOR plus 0.7%, for a fixed rate of 2.3%. For the first nine months of 2004, the EURIBOR rate has not fluctuated materially and the impact of swap was immaterial to the overall interest expense.
 
Income Taxes.   Our effective tax rate for continuing operations for the first nine months of 2004 decreased to 35.0% from 38.0% for the first nine months of 2003.  The decrease is primarily due to one-time tax benefits relating to prior year state tax credits that reduced the first nine months of 2004 rate by 2.0% compared to the comparable period last year.  Additionally, a higher percentage of earnings are coming from our European operations that have a lower effective tax rate than our overall average. Also, our China operations generated low taxed earnings for the first nine months of 2004, whereas in 2003, they generated larger losses for which we could not take a tax benefit.
 
Income From Continuing Operations.   Income from continuing operations for the first nine months of 2004 increased $12,244,000, or 46.0%, to $38,879,000 or $1.19 per common share, from $26,635,000 or $0.97 per common share, for the first nine months of 2003, in each case, on a diluted basis. The appreciation of the euro against the U.S. dollar resulted in a positive impact on income from continuing operations of $0.03 per share for the first nine months of 2004 compared to the comparable period last year. We cannot predict whether the euro will continue to appreciate against the U.S. dollar in future periods or whether future foreign exchange rate fluctuations will have a positive or negative impact on our net income. Income from continuing operations for the first nine months of 2004 and 2003 includes net costs incurred for our manufacturing restructuring plan of $1,417,000, or $0.04 per share and $640,000, or $0.02 per share, respectively.
 
Loss From Discontinued Operations.   We recorded a charge net of tax to discontinued operations for the first nine months of 2004 of $220,000, or ($0.01) per common share and $3,014,000, or ($0.11) per common share, for the first nine months of 2003, in each case, on a diluted basis. These charges are attributable to legal fees associated with the James Jones litigation, as described in Part I, Item 1, “Business-Product Liability, Environmental and Other Litigation Matters” in our Annual Report on Form 10-K for the year ended December 31, 2003 and in this Quarterly Report in Part II, Item 1, “Legal Proceedings.”
 
Liquidity and Capital Resources
 
We used $2,155,000 of cash to fund continuing operations for the first nine months of 2004. We experienced an increase in accounts receivable in North America, Europe and China. The North America increase is primarily due to increased sales volume and timing of certain cash receipts from certain large customers.  The European and China increase is primarily due to increased sales volume.  Additionally, we experienced an increase in inventories in North America, Europe and China. The North America increase is primarily due to an increased backlog, planned increases in finished goods as we set up additional distribution centers and a lengthened supply chain as we are producing more products abroad.  The Europe increase is primarily due to increased finished goods to support the delivery requirements of OEM customers in Europe. The China increase is primarily attributable to increased sales volume.  In addition, due to the cost increases in certain raw materials, our carrying value of our inventory for the nine months ended September 26, 2004 has increased approximately $9,000,000.
 
We used $87,748,000 of net cash for investing activities for the first nine months of 2004. We invested $16,823,000 in capital equipment.  Capital expenditures were primarily for manufacturing machinery and equipment as part of our ongoing commitment to improve our manufacturing capabilities. We expect to invest approximately $19,500,000 in capital equipment in 2004.  In the first quarter of 2004, we received $1,939,000 of proceeds primarily from a sale of one of our North American manufacturing facilities in which we have entered into a sale lease back.  Our business acquisitions, net of cash, consisted of $16,796,000 for the assets of Flowmatic, $5,750,000 for the 40% equity interest in Shida that had been held by our former joint venture partner, $17,234,000 for the TEAM acquisition, $3,750,000 of debt paid to the former shareholders of Hunter Innovations, and $27,862,000 for the Orion acquisition.
 
We generated $4,935,000 of net cash from financing activities for the first nine months of 2004 primarily from net borrowing proceeds from Europe and proceeds from stock option exercises partially offset by dividend payments.
 
On September 23, 2004, we entered into a revolving credit facility with a syndicate of banks (the Revolving Credit Facility).  The Revolving Credit Facility provides for multi-currency borrowings of up to $300,000,000, including stand-by letters of credit, and expires in September 2009. The Revolving Credit Facility is being used to support our acquisition program, working capital requirements and for general corporate purposes. As of September 26, 2004, long-term debt included $56,448,000 outstanding on the Revolving Credit Facility for euro-based borrowings and no amounts were outstanding for U.S. dollar borrowings. We had $211,411,000 of unused and available revolving credit at September 26, 2004.
 
Borrowings outstanding under the Revolving Credit Facility bear interest at a fluctuating rate per annum equal to an applicable percentage equal to (i) in the case of Eurocurrency rate loans, the British Bankers Association LIBOR rate plus an applicable
 
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percentage, ranging from 0.45% to 1.00%, determined by reference to the Company’s consolidated leverage ratio and debt rating, or (ii) in the case of base rate loans and swing line loans, the higher of (a) the federal funds rate plus 0.5% and (b) the annual rate of interest announced by Bank of America, N.A. as its “prime rate.” The average interest rate for borrowings under the revolving credit facility was approximately 2.8%.  Effective September 23, 2004, we used funds from the Revolving Credit Facility to pay off the existing debt on the previous credit facility that was to expire in February 2005.  The Revolving Credit Facility includes operational and financial covenants customary for facilities of this type, including, among others, restrictions on additional indebtedness, liens and investments and maintenance of certain leverage ratios. As of September 26, 2004, we were in compliance with all covenants related to the Revolving Credit Facility.
 
Effective July 1, 2003, we entered into an interest rate swap for a notional amount of €25,000,000 outstanding under our prior revolving credit facility. We swapped the variable rate from the Revolving Credit Facility that is three month EURIBOR plus 0.7% for a fixed rate of 2.3%. The term of the swap is two years. We have designated the swap as a hedging instrument using the cash flow method. The swap hedges the cash flows associated with interest payments on the first €25,000,000 of our revolving credit facility. We mark to market the changes in value of the swap through other comprehensive income. Any ineffectiveness has been recorded in income.  Amounts recorded have been immaterial at September 26, 2004 and September 28, 2003.
 
We generated $5,704,000 of net cash from discontinued operations, net of the impact of deferred taxes, for the first nine months of 2004. We received $11,000,000 in cash for a contested reimbursement of a partial settlement and $469,000 in cash for a contested reimbursement for settlement costs we incurred in the James Jones case. This cash has been recorded as a liability at September 26, 2004 because of the possibility that we may be required to reimburse the insurance company if it is ultimately successful with a future appeal. We also received $874,000 in cash for reimbursement of defense costs related to the James Jones case. We paid $1,605,000 for defense costs and $906,000 for indemnity costs we incurred in the James Jones case.
 
Working capital (defined as current assets less current liabilities) as of September 26, 2004 was $296,021,000 compared to $308,135,000 as of December 31, 2003. The ratio of current assets to current liabilities was 2.5 to 1 as of September 26, 2004 compared to 2.8 to 1 as of December 31, 2003. Cash and cash equivalents were $69,751,000 as of September 26, 2004 compared to $149,361,000 as of December 31, 2003.  This decrease in cash is due to cash paid for acquisitions, increased working capital requirements, and capital expenditures.
 
We anticipate that available funds from current operations, existing cash and other sources of liquidity will be sufficient to meet current operating requirements and anticipated capital expenditures for at least the next 12 months. However, we may have to consider external sources of financing for any large future acquisitions
 
Our long-term contractual obligations as of September 26, 2004 are presented in the following table:

 	 	Payments Due by Period	 	
Contractual Obligations	 	Total	 	Less than
1 year	 	1-3 years	 	3-5 years	 	More than
5 years	 	
 	 	(in thousands)	 	
Long-term debt obligations, including current maturities	 	$	197,214	 	$	9,433	 	$	4,719	 	$	892	 	$	182,170	 	
Operating lease obligations	 	9,896	 	623	 	4,574	 	2,847	 	1,852	 	
Capital lease obligations	 	1,225	 	360	 	756	 	109	 	—	 	
Total	 	$	208,335	 	$	10,416	 	$	10,049	 	$	3,848	 	$	184,022	 	
 
We maintain letters of credit that guarantee our performance or payment to third parties in accordance with specified terms and conditions. Amounts outstanding were approximately $41,880,000 as of September 26, 2004 and $29,880,000 as of December 31, 2003. Our letters of credit are primarily associated with insurance coverage and to a lesser extent foreign purchases. Our letters of credit generally expire within one year of issuance. The increase is primarily associated with insurance coverage. These instruments may exist or expire without being drawn down. Therefore, they do not necessarily represent future cash flow obligations.
 
Application of Critical Accounting Policies and Key Estimates
 
The preparation of our consolidated financial statements in accordance with U.S. GAAP requires management to make judgments, assumptions and estimates that affect the amounts reported. A critical accounting estimate is an assumption about highly uncertain matters and could have a material effect on the consolidated financial statements if another, also reasonable, amount were used, or, a change in the estimate is reasonably likely from period to period. We base our assumptions on historical experience and on other estimates that we believe are reasonable under the circumstances. Actual results could differ significantly from these estimates. There were no changes in accounting policies or significant changes in accounting estimates during the first nine months of 2004.
 
We have discussed the development, selection and disclosure of the estimates with the Audit Committee. Management believes the following critical accounting policies reflect its’ more significant estimates and assumptions.
 
Revenue recognition
 
We recognize revenue when all of the following criteria are met: (1) we have entered into a binding agreement, (2) the product has shipped and title has passed, (3) the sales price to the customer is fixed or is determinable and (4) collectibility is reasonably assured.
 
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We recognize revenue based upon a determination that all criteria for revenue recognition have been met, which, based on the majority of our shipping terms, is considered to have occurred upon shipment of the finished product. Some shipping terms require the goods to be received by the customer before title passes. In those instances, revenues are not recognized until the customer has received the goods. We record estimated reductions to revenue for customer returns and allowances and for customer programs. Provisions for returns and allowances are made at the time of sale, derived from historical trends and form a portion of the allowance for doubtful accounts. Customer programs, which are primarily annual volume incentive plans, allow customers to earn credit for attaining agreed upon purchase targets from us. We record customer programs as an adjustment to net sales.
 
Allowance for doubtful accounts
 
The allowance for doubtful accounts is established to represent our best estimate of the net realizable value of the outstanding accounts receivable. The development of our allowance for doubtful accounts varies by region but in general is based on a review of past due amounts, historical write-off experience, as well as aging trends affecting specific accounts and general operational factors affecting all accounts. In North America, management specifically analyzes individual accounts receivable and establishes specific reserves against financially troubled customers. In addition, factors are developed utilizing historical trends in bad debts, returns and allowances. The ratio of these factors to sales on a rolling twelve-month basis is applied to total outstanding receivables (net of accounts specifically identified) to establish a reserve. In Europe, management develops their bad debt allowance through an aging analysis of all their accounts. In China, where payment terms are generally extended, we reserve all accounts receivable in excess of one year from the invoice date and specifically reserve for identified uncollectible accounts receivable less than one year old.
 
We uniformly consider current economic trends and changes in customer payment terms when evaluating the adequacy of the allowance for doubtful accounts. We also aggressively monitor the credit worthiness of our largest customers, and periodically review customer credit limits to reduce risk. If circumstances relating to specific customers change or unanticipated changes occur in the general business environment, our estimates of the recoverability of receivables could be further adjusted.
 
Inventory valuation
 
Inventories are stated at the lower of cost or market with costs generally determined on a first-in first-out basis. We utilize both specific product identification and historical product demand as the basis for determining our excess or obsolete inventory reserve. We identify all inventories that exceed a range of one to three years in sales. This is determined by comparing the current inventory balance against unit sales for the trailing twelve months. New products added to inventory within the past twelve months are excluded from this analysis. A portion of our products contain recoverable materials, therefore the excess and obsolete reserve is established net of any recoverable amounts. Changes in market conditions, lower than expected customer demand or changes in technology or features could result in additional obsolete inventory that is not saleable and could require additional inventory reserve provisions.
 
In certain countries, additional inventory reserves are maintained for potential losses experienced in the manufacturing process. The reserve is established based on the prior year’s inventory losses adjusted for any change in the gross inventory balance.
 
Goodwill and other intangibles
 
We adopted Financial Accounting Standards Board Statement No. 142 “Goodwill and Other Intangible Assets” (FAS 142) on January 1, 2002, and as a result we no longer amortize goodwill. Goodwill and intangible assets with indefinite lives are tested annually for impairment in accordance with the provisions of FAS 142. We use judgment in assessing whether assets may have become impaired between annual impairment tests. We perform our annual test for indications of goodwill impairment on the last day of our fiscal October, which was October 24 for fiscal 2004.
 
Intangible assets such as purchased technology are generally recorded in connection with a business acquisition. In our larger, more complex acquisitions, the value assigned to intangible assets is determined by an independent valuation firm based on estimates and judgments regarding expectations of the success and life cycle of products and technology acquired.
 
It has been two years since adoption of FAS 142, and for both years our valuations have been greater than the carrying value of our goodwill and intangibles. While we believe that our estimates of future cash flows are reasonable, different assumptions regarding such factors as future sales volume, selling price changes, material cost changes, cost savings programs and capital expenditures could significantly affect our valuations. Other changes that may affect our valuations include, but are not limited to product acceptances and regulatory approval. If actual product acceptance differs significantly from the estimates, we may be required to record an impairment charge to write down the assets to their realizable value. A severe decline in market value could result in an unexpected impairment charge to goodwill, which could have a material impact on the results of operations and financial position.
 
Product liability and workers compensation costs
 
Because of retention requirements associated with our insurance policies, we are generally self-insured for potential product liability claims and for workers’ compensation costs associated with workplace accidents. For product liability cases in the U.S., management estimates expected settlement costs by utilizing stop loss reports provided by our third party administrators as well as developing internal historical trend factors based on our specific claims experience. Prior to 2003, we used insurance carrier trend factors to determine our product liability reserves. However, we determined circumstances inherent in those trends were not necessarily indicative of our own circumstances regarding our claims. Management believes the internal trend factors will more accurately reflect final expected settlement costs. In other countries, we maintain insurance coverage with relatively high deductible payments, as
 
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product liability claims tend to be smaller than those experienced in the U.S. Changes in the nature of claims or the actual settlement amounts could affect the adequacy of this estimate and require changes to the provisions.
 
Workers compensation liabilities in the U.S. are recognized for claims incurred (including claims incurred but not reported) and for changes in the status of individual case reserves. At the time a workers’ compensation claim is filed, a liability is estimated to settle the claim. The liability for workers’ compensation claims is determined based on management’s estimates of the nature and severity of the claims and based on analysis provided by third party administrators and by various state statutes and reserve requirements. We have developed our own trend factors based on our specific claims experience. In other countries where workers compensation costs are applicable, we maintain insurance coverage with limited deductible payments. Because the liability is an estimate, the ultimate liability may be more or less than reported.
 
We maintain excess liability insurance with outside insurance carriers to minimize our risks related to catastrophic claims in excess of all self-insured positions. Any material change in the aforementioned factors could have an adverse impact on our operating results.
 
Legal contingencies
 
We are a defendant in numerous legal matters including those involving environmental law and product liability as discussed further in Note 15 of Notes to Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended December 31, 2003. As required by Financial Accounting Standards Board Statement No. 5 “Accounting for Contingencies” (FAS 5), we determine whether an estimated loss from a loss contingency should be accrued by assessing whether a loss is deemed probable and the loss amount can be reasonably estimated, net of any applicable insurance proceeds. Estimates of potential outcomes of these contingencies are developed in consultation with outside counsel. While this assessment is based upon all available information, litigation is inherently uncertain and the actual liability to fully resolve this litigation cannot be predicted with any assurance of accuracy. Final settlement of these matters could possibly result in significant effects on our results of operations, cash flows and financial position.
 
Pension benefits
 
We account for our pension plans in accordance with Financial Accounting Standards Board Statement No. 87 “Employers Accounting for Pensions” (FAS 87). In applying FAS 87, assumptions are made regarding the valuation of benefit obligations and the performance of plan assets. The primary assumptions are as follows:
 
•                                           Weighted average discount rate—this rate is used to estimate the current value of future benefits. This rate is adjusted based on movement in long-term interest rates.
 
•                                           Expected long-term rate of return on assets—this rate is used to estimate future growth in investments and investment earnings. The expected return is based upon a combination of historical market performance and anticipated future returns for a portfolio reflecting the mix of equity, debt and other investments indicative of our plan assets.
 
•                                           Rates of increase in compensation levels—this rate is used to estimate projected annual pay increases, which are used to determine the wage base used to project employees’ pension benefits at retirement.
 
We determine these assumptions based on consultation with outside actuaries and investment advisors. Any variance in the above assumptions could have a significant impact on future recognized pension costs, assets and liabilities.
 
Income taxes
 
We estimate and use our expected annual effective income tax rates to accrue income taxes. Effective tax rates are determined based on budgeted earnings before taxes including our best estimate of permanent items that will impact the effective rate for the year. Management periodically reviews these rates with outside tax advisors and changes are made if material discrepancies from expectations are identified.
 
We recognize deferred taxes for the expected future consequences of events that have been reflected in the consolidated financial statements in accordance with the rules of Financial Accounting Standards Board Statement No. 109 “Accounting for Income Taxes” (FAS 109). Under FAS 109, deferred tax assets and liabilities are determined based on differences between the book values and tax bases of particular assets and liabilities, using tax rates in effect for the years in which the differences are expected to reverse. A valuation allowance is provided to offset any net deferred tax assets if, based upon the available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. We consider estimated future taxable income and ongoing prudent tax planning strategies in assessing the need for a valuation allowance.
 
Certain Factors Affecting Future Results
 
This report includes statements which are not historical facts and are considered forward looking within the meaning of the Private Securities Litigation Reform Act of 1995.  These forward-looking statements reflect Watts Water Technologies’ current views about future results of operations and other forward-looking information.  In some cases you can identify these statements by forward-looking words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “should,” “will” and “would” or similar words. You should not rely on forward-looking statements because Watts’ actual results may differ materially from those indicated by these forward-looking statements as a result of a number of important factors.  These factors include, but are not limited to, the
 
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following:  shortages in and pricing of raw materials and supplies including recent cost increases by suppliers of raw materials and our ability to pass these costs on to customers, loss of market share through competition, introduction of competing products by other companies, pressure on prices from competitors, suppliers, and/or customers, diversion of management’s attention and costs associated with efforts to comply with Section 404 of the Sarbanes-Oxley Act of 2002, failure to meet the new requirements under Section 404 of the Sarbanes-Oxley Act of 2002 in a timely manner, the identification and disclosure of material weaknesses in our internal controls over financial reporting, failure to expand our markets through acquisitions, failure or delay in developing new products, lack of acceptance of new products, failure to manufacture products that meet required performance and safety standards, foreign exchange rate fluctuations, cyclicality of industries, such as plumbing and heating wholesalers and home improvement retailers, in which the Company markets certain of its products, economic factors, such as the levels of housing starts and remodeling, impacting the markets where the Company’s products are sold, manufactured, or marketed, environmental compliance costs, product liability risks, the results and timing of the Company’s manufacturing restructuring plan, changes in the status of current litigation, including the James Jones case, and other risks and uncertainties discussed under the heading “Certain Factors Affecting Future Results” in the Watts Water Technologies, Inc. Annual Report on Form 10-K for the year ended December 31, 2003 filed with the Securities Exchange Commission and other reports Watts files from time to time with the Securities and Exchange Commission.
 
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Item 3 .  Quantitative and Qualitative Disclosures about Market Risk
 
We use derivative financial instruments primarily to reduce exposure to adverse fluctuations in foreign exchange rates, interest rates and costs of certain raw materials used in the manufacturing process. We do not enter into derivative financial instruments for trading purposes. As a matter of policy, all derivative positions are used to reduce risk by hedging underlying economic exposure. The derivatives we use are instruments with liquid markets.
 
Our consolidated earnings, which are reported in United States dollars are subject to translation risks due to changes in foreign currency exchange rates. This risk is concentrated in the exchange rate between the U.S. dollar and the euro; the U.S. dollar and the Canadian dollar; and the U.S. dollar and the Chinese RMB.
 
Our foreign subsidiaries transact most business, including certain intercompany transactions, in foreign currencies. Such transactions are principally purchases or sales of materials and are denominated in European currencies or the U.S. or Canadian dollar. We use foreign currency forward contracts and options to manage the risk related to intercompany purchases that occur during the course of a year and certain open foreign currency denominated commitments to sell products to third parties.  The amounts recorded in other comprehensive income for the change in the fair value of the contracts for our contracts in our Canadian operations were immaterial for the third quarter and first nine months ended September 26, 2004.
 
We have historically had a very low exposure on the cost of our debt to changes in interest rates. Interest rate swaps are used to mitigate the impact of interest rate fluctuations on certain variable rate debt instruments and reduce interest expense on certain fixed rate instruments. Information about our long-term debt including principal amounts and related interest rates appears in Note 11 of Notes to Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended December 31, 2003.
 
We purchase significant amounts of bronze ingot, brass rod, cast iron, steel and plastic, which are utilized in manufacturing our many product lines. Our operating results can be adversely affected by changes in commodity prices if we are unable to pass on related price increases to our customers. We manage this risk by monitoring related market prices, working with our suppliers to achieve the maximum level of stability in their costs and related pricing, seeking alternative supply sources when necessary and passing increases in commodity costs to our customers, to the maximum extent possible, when they occur. Additionally, on a limited basis, we use commodity futures contracts to manage this risk, but we did not in the third quarter or first nine months of 2004.
 
Item 4 .  Controls and Procedures
 
As required by Rule 13a-15(b) under the Securities Exchange Act of 1934, as of September 26, 2004, we carried out an evaluation under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures.  In designing and evaluating our disclosure controls and procedures, we recognize that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and our management necessarily was required to apply its judgment in evaluating and implementing possible controls and procedures.  The effectiveness of our disclosure controls and procedures is necessarily limited by the staff and other resources available to us and, although we have designed our disclosure controls and procedures to address the geographic diversity of our operations, this diversity inherently may limit the effectiveness of those controls and procedures.  Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer determined that, as of September 26, 2004, our disclosure controls and procedures were effective, in that they provide reasonable assurance that information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms.  There were no changes in our internal controls over financial reporting that occurred during the quarter covered by this report that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting. In connection with these rules, we will continue to review and document our disclosure controls and procedures, including our internal controls and procedures for financial reporting. We may from time to time make changes in our controls and procedures aimed at enhancing their effectiveness and to ensure that our systems evolve with our business.
 
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As a result of Section 404 of the Sarbanes-Oxley Act of 2002 and the related rules adopted by the Securities and Exchange Commission (collectively, the “Section 404 requirements”), we will be required to include in our Annual Report on Form 10-K for the year ending December 31, 2004, a report on management’s assessment of the effectiveness of our internal controls over financial reporting.  Our independent auditor will also be required to attest to and report on management’s assessment.  While we have been and continue to prepare for the Section 404 requirements, a significant amount of work remains and there can be no assurance that we will be able to complete management’s assessment by the December 31, 2004 deadline or that our independent auditor will be able to complete the testing necessary to attest to management’s assessment.  Further, there can be no assurance that, if completed, management’s assessment and the auditor’s attestation will not report any additional material weaknesses in our internal controls over financial reporting.  The review and documentation of our internal control systems is expected to cost approximately $6 million for fiscal year 2004 and has required a significant amount of time and attention from our management team and finance staff.  Any improvements in our internal control systems or in documentation of such internal control systems could be costly to prepare or implement, could further divert attention of management or our finance staff, and may cause our operating expenses to increase.
 
Part II.  Other Information
 
Item l.      Legal Proceedings
 
As disclosed in Part I, Item 1, “Product Liability, Environmental and Other Litigation Matters” of our Annual Report on Form 10-K for the year ended December 31, 2003, we are a party to the litigation described as the James Jones litigation.
 
In the James Jones litigation, on July 27, 2004, the California Superior Court granted our motion for summary adjudication and ordered that Zurich American Insurance Company, or Zurich, indemnify us for our settlement with the three Phase I cities. In August 2003, we had made a payment of $11,000,000 for this settlement, and in April 2004, we received $11,000,000 from Zurich, subject to Zurich’s claims for reimbursement.  Zurich has filed a petition seeking appellate review of the July 27, 2004 decision, which we have opposed.  The $11,000,000 cash receipt is reflected as a liability of discontinued operations on our balance sheet, as of September 26, 2004. This amount was expensed to discontinued operations in prior periods.
 
We previously reported that the California Superior Court had made a summary adjudication ruling that Zurich must pay all reasonable defense costs incurred by us in the case of Armenta vs. James Jones Company (the “Armenta case”) since April 23, 1998 as well as our future defense costs in the Armenta case until its final resolution.  We further disclosed that Zurich had appealed this ruling and that its appeal was pending before the California Court of Appeal.  On August 24, 2004, the California Court of Appeal affirmed the summary adjudication ruling of the California Superior Court, which requires Zurich to pay our defense costs in the Armenta case.  On October 1, 2004, Zurich filed with the California Supreme Court a Petition for Review of this Court of Appeal decision.  We have opposed this Petition for Review, and management and counsel do not anticipate that the California Court of Appeal decision will be modified by the California Supreme Court. However,  Zurich’s obligation to pay future defense costs could be affected by future developments in the Armenta case.
 
In the Armenta case, on September 15, 2004, the California Superior Court granted our motion to dismiss claims based on purchases of James Jones Company products by developers, contractors or other private entities and granted our motion to deny the filing of a third amended complaint.  On September 14, 2004, the attorney for Armenta filed a new common law fraud claim in the California Superior Court against us and other Armenta case defendants on behalf of 47 cities, most of whom are named plaintiffs in the Armenta case.
 
Item 5.   Other Infor mation
 
On August 18, 2004, Roger A. Young resigned as a member of our board of directors in order to focus full time on his studies at the Yale Divinity School.
 
Item 6.     Exhibits
 
The exhibits listed in the Exhibit Index are included elsewhere in this report.
 
32

 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 	 	WATTS WATER TECHNOLOGIES, INC.	

Date:	November 5, 2004	 	By:	/s/ Patrick S. O’Keefe	 	
 	 	 	 	Patrick S. O’Keefe	
 	 	 	 	Chief Executive Officer	

Date:	November 5, 2004	 	By:	/s/ William C. McCartney	 	
 	 	 	 	William C. McCartney	
 	 	 	 	Chief Financial Officer and Treasurer	

33

 
EXHIBIT INDEX
 
Listed and indexed below are all Exhibits filed as part of this report.

Exhibit No.	 	Description	
 	 	 	
10.1	 	Credit Agreement dated as of September 23, 2004 among Watts Water Technologies, Inc. and certain of its subsidiaries, Bank of America, N.A., JP Morgan Chase Bank, Wachovia Bank, National Association, Key Bank National Association, SunTrust Bank and certain other lenders.	
 	 	 	
10.2	 	Form of Incentive Stock Option Agreement under the Watts Water Technologies, Inc. 2004 Stock Incentive Plan.	
 	 	 	
10.3	 	Form of Non-Qualified Stock Option Agreement under the Watts Water Technologies, Inc. 2004 Stock Incentive Plan.	
 	 	 	
10.4	 	Form of Restricted Stock Award Agreement for Employees under the Watts Water Technologies, Inc. 2004 Stock Incentive Plan.	
 	 	 	
10.5	 	Form of Restricted Stock Award Agreement for Employees under the Watts Water Technologies, Inc. 2004 Stock Incentive Plan.	
 	 	 	
10.6	 	Form of Restricted Stock Award Agreement for Non-Employee Directors under the Watts Water Technologies, Inc. 2004 Stock Incentive Plan.	
 	 	 	
11	 	Computation of Earnings per Share (1)	
 	 	 	
31.1	 	Certification of Principal Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.	
 	 	 	
31.2	 	Certification of Principal Financial Officer pursuant Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.	
 	 	 	
32.1	 	Certification of Principal Executive Officer pursuant to 18 U.S.C. 1350.	
 	 	 	
32.2	 	Certification of Principal Financial Officer pursuant to 18 U.S.C. 1350.	
 
34

Exhibit 10.1

CREDIT AGREEMENT
 
Dated as of September 23, 2004
 
among
 
WATTS WATER TECHNOLOGIES, INC.,
 
and
 
CERTAIN SUBSIDIARIES
 
as Borrowers,
 
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
 
J PMORGAN CHASE BANK
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agents
 
KEYBANK NATIONAL ASSOCIATION,
 and
 SUNTRUST BANK
 
as Documentation Agents
 
and
 
The Other Lenders Party Hereto
 
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager

 
TABLE OF CONTENTS

Section	 	 	
 	 	
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	
1.01	Defined Terms	 	
1.02	Other Interpretive Provisions	 	
1.03	Accounting Terms	 	
1.04	Exchange Rates; Currency Equivalents	 	
1.05	Change of Currency	 	
1.06	Times of Day	 	
1.07	Letter of Credit Amounts	 	
 	 	 	
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	
2.01	Committed Loans	 	
2.02	Borrowings, Conversions and Continuations of Committed Loans.	 	
2.03	Letters of Credit.	 	
2.04	Swing Line Loans.	 	
2.05	Prepayments	 	
2.06	Termination or Reduction of Commitments.	 	
2.07	Repayment of Loans	 	
2.08	Interest	 	
2.09	Fees	 	
2.10	Computation of Interest and Fees	 	
2.11	Evidence of Debt	 	
2.12	Payments Generally; Administrative Agent’s Clawback	 	
2.13	Sharing of Payments by Lenders	 	
2.14	Designated Borrowers	 	
2.15	Increase in Commitments.	 	
 	 	 	
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	
3.01	Taxes.	 	
3.02	Illegality	 	
3.03	Inability to Determine Rates	 	
3.04	Increased Costs; Reserves on Eurocurrency Rate Loans.	 	
3.05	Compensation for Losses	 	
3.06	Mitigation Obligations; Replacement of Lenders.	 	
3.07	Survival	 	
 	 	 	
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	
4.01	Conditions of Initial Credit Extension	 	
4.02	Conditions to all Credit Extensions	 	
 	 	 	
ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	
5.01	Existence, Qualification and Power; Compliance with Laws	 	
5.02	Authorization; No Contravention	 	
5.03	Governmental Authorization; Other Consents	 	

 

Section	 	 	
 	 	
5.04	Binding Effect	 	
5.05	Financial Statements; No Material Adverse Effect.	 	
5.06	Litigation	 	
5.07	No Default	 	
5.08	Ownership of Property; Liens	 	
5.09	Environmental Compliance	 	
5.10	Insurance	 	
5.11	Taxes	 	
5.12	ERISA Compliance.	 	
5.13	Subsidiaries; Equity Interests	 	
5.14	Margin Regulations; Investment Company Act; Public Utility Holding Company Act.	 	
5.15	Disclosure	 	
5.16	Compliance with Laws	 	
5.17	Intellectual Property; Licenses, Etc	 	
5.18	Senior Note Documents	 	
5.19	Material Domestic Subsidiaries	 	
5.20	Representations as to Foreign Obligors	 	
5.21	Dutch Companies.	 	
5.22	OFAC	 	
 	 	 	
ARTICLE VI. AFFIRMATIVE COVENANTS	 	
6.01	Financial Statements	 	
6.02	Certificates; Other Information	 	
6.03	Notices	 	
6.04	Payment of Obligations	 	
6.05	Preservation of Existence, Etc	 	
6.06	Maintenance of Properties	 	
6.07	Maintenance of Insurance	 	
6.08	Compliance with Laws	 	
6.09	Books and Records	 	
6.10	Inspection Rights	 	
6.11	Use of Proceeds	 	
6.12	Approvals and Authorizations	 	
6.13	Amendments to Governing Documents	 	
6.14	Additional Subsidiary Guarantors	 	
6.15	Foreign Subsidiary Guarantors	 	
6.16	Further Assurances	 	
 	 	 	
ARTICLE VII. NEGATIVE COVENANTS	 	
7.01	Liens	 	
7.02	Investments	 	
7.03	Indebtedness	 	
7.04	Fundamental Changes; Permitted Acquisitions	 	
7.05	Dispositions	 	
7.06	Restricted Payments	 	
7.07	Change in Nature of Business	 	

ii

 

Section	 	 	
 	 	 	
7.08	Transactions with Affiliates	 	
7.09	Burdensome Agreements	 	
7.10	Use of Proceeds	 	
7.11	Modification of Organization Documents	 	
7.12	Senior Note Documents	 	
7.13	Financial Covenants.	 	
7.14	Swap Contracts	 	
 	 	 	
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	
8.01	Events of Default	 	
8.02	Remedies Upon Event of Default	 	
8.03	Application of Funds	 	
 	 	 	
ARTICLE IX. ADMINISTRATIVE AGENT	 	
9.01	Appointment and Authority.	 	
9.02	Rights as a Lender	 	
9.03	Exculpatory Provisions	 	
9.04	Reliance by Administrative Agent.	 	
9.05	Delegation of Duties	 	
9.06	Resignation of Administrative Agent	 	
9.07	Non-Reliance on Administrative Agent and Other Lenders	 	
9.08	No Other Duties, Etc	 	
9.09	Administrative Agent May File Proofs of Claim	 	
9.10	Guaranty Matters	 	
 	 	 	
ARTICLE X. MISCELLANEOUS	 	
10.01	Amendments, Etc	 	
10.02	Notices; Effectiveness; Electronic Communication.	 	
10.03	No Waiver; Cumulative Remedies	 	
10.04	Expenses; Indemnity; Damage Waiver.	 	
10.05	Payments Set Aside	 	
10.06	Successors and Assigns.	 	
10.07	Treatment of Certain Information; Confidentiality	 	
10.08	Right of Setoff	 	
10.09	Interest Rate Limitation	 	
10.10	Counterparts; Integration; Effectiveness	 	
10.11	Survival of Representations and Warranties	 	
10.12	Severability	 	
10.13	Replacement of Lenders	 	
10.14	Governing Law; Jurisdiction; Etc.	 	
10.15	Waiver of Jury Trial	 	
10.16	USA PATRIOT Act Notice	 	
10.17	Judgment Currency	 	

iii

 

SCHEDULES	 	 	
 	 	 	
1.01	Existing Letters of Credit	 	
2.01	Commitments and Applicable Percentages	 	
5.06	Litigation	 	
5.09	Environmental Matters	 	
5.13	Subsidiaries	 	
5.19	Material Domestic Subsidiaries	 	
6.15	Foreign Subsidiary Guarantors	 	
7.01	Existing Liens	 	
7.02	Existing Investments	 	
7.03	Existing Indebtedness	 	
10.02	Administrative Agent’s Office; Certain Addresses for Notices	 	
 	 	 	
EXHIBITS	 	 	
 	Form of	 	
 	 	 	
A	Committed Loan Notice	 	
B	Swing Line Loan Notice	 	
C	Note	 	
D	Compliance Certificate	 	
E	Assignment and Assumption	 	
F	Guaranty Agreement	 	
G	Designated Borrower Request and Assumption Agreement	 	
H	Designated Borrower Notice	 	
I-1	Opinion of U.S. Counsel	 	
I-2	Opinion of Dutch Counsel	 	
 
iv

 
CREDIT AGREEMENT
 
This CREDIT AGREEMENT (this “ Agreement ”) is entered into as of September 23, 2004, among WATTS WATER TECHNOLOGIES, INC., a Delaware corporation (the “ Company ”), certain Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “ Designated Borrower ” and, together with the Company, the “ Borrowers ” and, each a “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
 
The Company has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
 
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
 
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
 
1.01        Defined Terms .   As used in this Agreement, the following terms shall have the meanings set forth below:
 
“ Acquisition ” means the acquisition, by purchase, merger or otherwise, of all or substantially all of the assets (or any part of the assets constituting all or substantially all of a business or line of business) of any Person, whether such acquisition is direct or indirect, including through the acquisition of the business of, or more than 50% of the outstanding Voting Stock of, such Person, and whether such acquisition is effected in a single transaction or in a series of related transactions, and the acquisition, by purchase, merger or otherwise, of additional shares of the outstanding Voting Stock of any Subsidiary that is not then a wholly-owned Subsidiary of the Company.
 
“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
 
“ Administrative Agent’s Office ” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.
 
“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
 
“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
 
“ Aggregate Commitments ” means the Commitments of all the Lenders.
 
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“ Agreement ” has the meaning specified in the introductory paragraph hereto.
 
“ Applicable Foreign Obligor Documents ” has the meaning specified in Section 5.20(a) .
 
“ Applicable Percentage ” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
 
“ Applicable Rate ” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:
 
Applicable Rate

Pricing
Level	 	Debt Ratings
S&P/Moody’s	 	Consolidated
Leverage Ratio	 	Facility
Fee	 	Eurocurrency Rate
and
Letter of Credit Fee	 	Utilization
Fee	 	
1	 	A-/A3 or better	 	 	 	0.10	%	0.45	%	0.10	%	
2	 	BBB+/Baa1	 	< 1.25	 	0.125	%	0.50	%	0.10	%	
3	 	BBB/Baa2	 	>1.25 and <1.75	 	0.15	%	0.60	%	0.125	%	
4	 	BBB-/Baa3	 	> 1.75 and <2.25	 	0.20	%	0.80	%	0.15	%	
5	 	BB+/Ba1 or worse	 	> 2.25	 	0.25	%	1.00	%	0.20	%	
 
“ Debt Rating ” means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “ Debt Ratings ”) of the Company’s non-credit-enhanced, senior unsecured long-term debt; provided that if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest), unless there is a split in Debt Ratings of more than one level, in which case the Pricing Level that is one level higher than the Pricing Level of the lower Debt Rating shall apply.  Initially, the Applicable Rate shall be determined based upon a Debt Rating of BBB/Baa2.  After the Closing Date, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of delivery by the Company to the Administrative Agent of notice thereof pursuant to Section 6.03(e) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
 
If at any time the Company shall not carry a Debt Rating from either of S&P or Moody’s, “ Applicable Rate ” shall mean, from time to time, the percentages per annum, based upon the
 
2

 
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) or 7.04(c)(iii) , as set forth above. Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) or 7.04(c)(iii) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with either such Section, then Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered.
 
“ Applicant Borrower ” has the meaning specified in Section 2.14 .
 
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
 
“ Arranger ” means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.
 
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b) ) , and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.
 
“ Attributable Indebtedness ” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease, and (c) in respect of any Permitted Receivables Purchase Facility, the amount of obligations outstanding under such Permitted Receivables Purchase Facility that would be characterized as principal if such facility were structured as a secured lending transaction rather than as a purchase, whether such obligations constitute on-balance sheet Indebtedness or an off-balance sheet liability.
 
“ Audited Financial Statements ” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2003 , and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
 
“ Availability Period ” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06(a) , (c) the date of the reduction of the Aggregate Commitments to zero pursuant to Section 2.06(b) and (d) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
 
“ Bank of America ” means Bank of America, N.A. and its successors.
 
3

 
“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.”  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
 
“ Base Rate Committed Loan ” means a Committed Loan that is a Base Rate Loan.
 
“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.  All Base Rate Loans shall be denominated in Dollars.
 
“ Borrower ” and “ Borrowers ” each has the meaning specified in the introductory paragraph hereto.
 
“ Borrowing ” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
 
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:
 
(a)           if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market; and
 
(b)           if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day.
 
“ Capital Expenditures ” means, for any period and with respect to any Person, the aggregate of all expenditures by such Person for the acquisition or leasing of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of such Person.
 
“ Cash Collateralize ” has the meaning specified in Section 2.03(g)(iv) .
 
“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
 
4

 
in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
 
“ Change of Control ” means an event or series of events by which:
 
(a)           any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of equity securities of the Company representing 25% or more of the aggregate voting power with respect to elections of members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
 
(b)           during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii) , any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or
 
(c)           except for directors’ qualifying shares in jurisdictions where such qualifying shares are required, the Company shall fail to own directly or indirectly, one hundred percent (100%) of the Equity Interests of each Designated Borrower and each Subsidiary Guarantor.
 
“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .
 
“ Code ” means the Internal Revenue Code of 1986.
 
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“ Commission ” means the Securities and Exchange Commission of the United States of America and any Person succeeding to the functions thereof.
 
“ Commitment ” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrowers pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
 
“ Committed Borrowing ” means a borrowing consisting of simultaneous Committed Loans of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
 
“ Committed Loan ” has the meaning specified in Section 2.01 .
 
“ Committed Loan Notice ” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .
 
“ Company ” has the meaning specified in the introductory paragraph hereto.
 
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .
 
“ Consolidated EBITDA ” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Total Interest Expense for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period and (v) Losses from Discontinued Operations and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period.
 
“ Consolidated Fixed Charge Coverage Ratio ” means, a s of any date of determination, the ratio of (a) Consolidated Operating Cash Flow for the period of the four fiscal quarters most recently ended to (b) Consolidated Total Debt Service for such period; provided , however , when calculating the Consolidated Fixed Charge Coverage Ratio for any period in which a Permitted Acquisition has occurred, the calculation of the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis.
 
“ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, the sum of (without duplication) (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed
 
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money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (excluding standby but including commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital leases, Synthetic Lease Obligations and Permitted Receivables Purchase Facilities, (f) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company or similar entity) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Subsidiary.
 
“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended; provided , however , when calculating the Consolidated Leverage Ratio for any period in which a Permitted Acquisition has occurred, the calculation of the Consolidated Leverage Ratio shall be made on a Pro Forma Basis.
 
“ Consolidated Net Income ” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the net income of the Company and its Subsidiaries (excluding extraordinary gains and excluding non-cash extraordinary losses) for that period.
 
“ Consolidated Operating Cash Flow ” means, for any period, an amount equal to (a) the sum of (i) Consolidated EBITDA for such period, minus (b) to the extent not already deducted in the determination of Consolidated EBITDA, Capital Expenditures made during such period.
 
“ Consolidated Net Worth ” means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Shareholders’ Equity of the Company and its Subsidiaries on that date.
 
“ Consolidated Total Assets ” means the total assets of the Company and its Subsidiaries on a consolidated basis, determined in accordance with GAAP.
 
“ Consolidated Total Debt Service ” means, with respect to the Company and its Subsidiaries and for any period, the sum, without duplication, of (a) Consolidated Total Interest Expense for such period plus (b) any and all scheduled repayments of principal during such period in respect of Indebtedness that becomes due and payable or that are to become due and payable during such period pursuant to any agreement or instrument to which the Company or any of its Subsidiaries is a party relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds, (ii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and reimbursement obligations in respect of commercial letters of credit or bankers acceptances incurred in the ordinary course of business), (iii) in respect of any Synthetic Lease Obligations, capital leases or Permitted Receivables Purchase Facilities, and (iv) Indebtedness of the type referred to above of another Person guaranteed by the Company or any of its Subsidiaries.  Demand obligations shall be
 
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deemed to be due and payable during any fiscal period during which such obligations are outstanding.
 
“ Consolidated Total Interest Expense ” means, for any period, the aggregate amount of interest required to be paid or accrued by the Company and its Subsidiaries during such period on all Indebtedness of the Company and its Subsidiaries outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of any capitalized leases, Synthetic Lease Obligations and Permitted Receivables Purchase Facilities, and including commitment fees, agency fees, facility fees, utilization fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money.
 
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
 
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.
 
“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
 
“ Debt Rating ” has the meaning specified in the definition of “Applicable Rate.”
 
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
 
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
 
“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) 2% per annum; provided , however , that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
 
“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date
 
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when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
 
“ Designated Borrower ” has the meaning specified in the introductory paragraph hereto.
 
“ Designated Borrower Notice ” has the meaning specified in Section 2.14 .
 
“ Designated Borrower Request and Assumption Agreement ” has the meaning specified in Section 2.14 .
 
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
 
“ Dollar ” and “ $ ” mean lawful money of the United States.
 
“ Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Euros, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Euros.
 
“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
 
“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default has occurred and is continuing, the Company (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Company or any of the Company’s Affiliates or Subsidiaries; and provided further , however , that an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending Euros to the relevant Borrowers without the imposition of any Taxes or additional Taxes, as the case may be.
 
“ EMU ” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
 
“ EMU Legislation ” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
 
“ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including
 
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those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
 
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
 
“ Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
 
“ ERISA ” means the Employee Retirement Income Security Act of 1974.
 
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
 
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
 
“ Euro ” and “ EUR ” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
 
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“ Eurocurrency Rate ” means, for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurocurrency Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
 
“ Eurocurrency Rate Loan ” means a Committed Loan that bears interest at a rate based on the Eurocurrency Rate.  Eurocurrency Rate Loans may be denominated in Dollars or in Euros.  All Committed Loans denominated in Euros must be Eurocurrency Rate Loans.
 
“ Euro Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Euros as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Euros with Dollars.
 
“ Event of Default ” has the meaning specified in Section 8.01 .
 
“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in which it has a branch office or carries on a trade or business, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which such Borrower is located and (c) except as provided in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a request by the Company under Section 10.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower with respect to such withholding tax pursuant to Section 3.01(a) .  Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan Document, provided that such Lender shall have complied with the last paragraph of Section 3.01(e) .
 
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“ Existing Credit Agreement ” means that certain Revolving Credit Agreement, dated as of February 28, 2002, among the Company, the Initial Designated Borrower, Watts Regulator Co., a Massachusetts corporation, the financial institutions parties thereto from time to time as lenders, and Fleet National Bank, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof.
 
“ Existing Letters of Credit ” means, collectively, those letters of credit issued by Fleet National Bank in favor of the Company or a Subsidiary prior to the Closing Date and listed on Schedule 1.01 .
 
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
 
“ Fee Letter ” means the letter agreement, dated July 15, 2004, among the Company, the Administrative Agent and the Arranger.
 
“ Foreign Lender ” means, with respect to any Borrower, any Lender that is organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
 
“ Foreign Obligor ” means a Loan Party that is a Foreign Subsidiary.
 
“ Foreign Subsidiary ” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
 
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
 
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
 
“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
 
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“ German Subsidiary ” means any Subsidiary of the Company organized under the laws of Germany or any political subdivision thereof.
 
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
 
“ Guarantee ” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.
 
“ Guaranteed Swap Contract ” means any Swap Contract to which the Company or any other Loan Party and any Lender (or any Affiliate of any Lender) is a party.
 
“ Guaranties ” means the Guaranty Agreement and any other guaranty executed by any Designated Borrower or any Subsidiary Guarantor in favor of the Administrative Agent, on behalf of itself and the Lenders, in respect of the Obligations .
 
“ Guaranty Agreement ” means the Guaranty made by the Loan Parties in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F .
 
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
 
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“ Increase Effective Date ” has the meaning specified in Section 2.15(d) .
 
“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
 
(a)           all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
 
(b)           all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
 
(c)           net obligations of such Person under any Swap Contract;
 
(d)           all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business );
 
(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
 
(f)            Attributable Indebtedness in respect of capital leases (including in connection with any sale and leaseback transaction), Synthetic Lease Obligations and Permitted Receivables Purchase Facilities;
 
(g)           all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
 
(h)           all Guarantees of such Person in respect of any of the foregoing.
 
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company or similar legal entity) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
 
“ Indemnified Taxes ” means Taxes other than Excluded Taxes.
 
“ Indemnitees ” has the meaning specified in Section 10.04(b) .
 
“ Initial Designated Borrower ” means Watts Industries Europe B.V., a private company with limited liability organized under the laws of The Netherlands.
 
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“ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.
 
“ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Company in its Committed Loan Notice; provided that:
 
(i)            any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
 
(ii)           any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
 
(iii)          no Interest Period shall extend beyond the Maturity Date.
 
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
 
“ IP Rights ” has the meaning specified in Section 5.17 .
 
“ IRS ” means the United States Internal Revenue Service.
 
“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
 
“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor the L/C Issuer and relating to any such Letter of Credit.
 
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“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
 
“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
 
“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing. All L/C Borrowings shall be denominated in Dollars.
 
“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
 
“ L/C Issuer ” means (i) with respect to the Existing Letters of Credit, Fleet National Bank and (ii) with respect to each other Letter of Credit, Bank of America in its capacity as issuer of Letters of Credit hereunder or any successor issuer of Letters of Credit hereunder.  All references contained in this Agreement and the other Loan Documents to the “L/C Issuer” shall be deemed to apply equally to each of the institutions referred to in clauses (i) and (ii) of this definition in their respective capacities as issuers of any and all Letters of Credit issued by each such institution.
 
“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 .  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
 
“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
 
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent.
 
“ Letter of Credit ” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit .  Letters of Credit may be issued in Dollars or in Euros.
 
“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
 
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“ Letter of Credit Expiration Date ” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
 
“ Letter of Credit Fee ” has the meaning specified in Section 2.03(i) .
 
“ Letter of Credit Sublimit ” means an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
 
“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing), but not including the interest of a lessor under an operating lease or the interest of a purchaser of Permitted Receivables under any Permitted Receivables Purchase Facility.
 
“ Loan ” means an extension of credit by a Lender to a Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
 
“ Loan Documents ” means this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, the Fee Letter and the Guaranties .
 
“ Loan Parties ” means, collectively, the Company , each Subsidiary Guarantor and each Designated Borrower.
 
“ Losses from Discontinued Operations ” means, for any period and without duplication, operating losses and losses and expenses incurred or charges taken in connection with the operations of James Jones Company and the discontinuance thereof.
 
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
 
“ Maturity Date ” means September 23, 2009.
 
“ Material Domestic Subsidiary ” means any Domestic Subsidiary of the Company listed on Schedule 5.19 or the most recent supplement thereto delivered in accordance with Section 6.02(f) or 7.04(c)(iv) , as applicable.
 
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
 
“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to
 
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make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
 
“ Net Disposition Proceeds ” means, with respect to any Disposition of any assets of the Company or any of its Subsidiaries, the excess of (a) the gross cash proceeds received by such Person from any such Disposition and any cash payments received in respect of promissory notes or other non-cash consideration delivered to such Person in respect thereof over (b) the sum (without duplication) of (i) all reasonable and customary legal, investment banking, brokerage and accounting and other professional fees and disbursements actually incurred in connection with such Disposition which have not been paid to Affiliates of the Borrower in connection therewith, (ii) all taxes and other governmental costs and expenses actually paid or estimated by such Person (in good faith) to be payable in cash in connection with such Disposition, and (iii) payments made by such Person to retire Indebtedness (other than the Credit Extensions) of such Person where payment of such Indebtedness is required in connection with such Disposition; provided , however , that if, after the payment of all taxes with respect to such Disposition, the amount of estimated taxes, if any, pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash in respect of such Disposition, the aggregate amount of such excess shall, at such time, constitute Net Disposition Proceeds.
 
“ Note ” means a promissory note made by a Borrower in favor of a Lender evidencing Loans made by such Lender to such Borrower, substantially in the form of Exhibit C .
 
“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or Guaranteed Swap Contract or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
 
“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Asset Control.
 
“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
 
“ Other Taxes ” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or
 
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under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
 
“ Outstanding Amount ” means (i) with respect to Committed Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
 
“ Overnight Rate ” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in Euros, the rate of interest per annum at which overnight deposits in Euros, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for Euros to major banks in such interbank market.
 
“ Participant ” has the meaning specified in Section 10.06(d) .
 
“ Participating Member State ” means each state so described in any EMU Legislation.
 
“ PBGC ” means the Pension Benefit Guaranty Corporation.
 
“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
 
“ Permitted Acquisition ” has the meaning specified in Section 7.04(c) .
 
“ Permitted Receivables ” means all obligations of any obligor (whether now existing or hereafter arising) under a contract for sale of goods or services by any Loan Party or other Subsidiary of the Company, which shall include any obligation of such obligor (whether now existing or hereafter arising) to pay interest, finance charges or amounts with respect thereto, and, with respect to any of the foregoing receivables or obligations, (a) all of the interest of the Company or any of its Subsidiaries in the goods (including returned goods) the sale of which gave rise to such receivable or obligation after the passage of title thereto to any obligor, (b) all other Liens and property subject thereto from time to time purporting to secure payment of such receivables or obligations, and (c) all guarantees, insurance, letters of credit and other
 
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agreements or arrangements of whatever character from time to time supporting or securing payment of any such receivables or obligations.
 
“ Permitted Receivables Purchase Facility ” means any agreement of any Loan Party or other Subsidiary of the Company providing for sales, transfers or conveyances of Permitted Receivables purporting to be sales (and considered sales under GAAP) that do not provide, directly or indirectly, for recourse against the seller of such Permitted Receivables (or against any of such seller’s Affiliates) by way of a guaranty or any other support arrangement, with respect to the amount of such Permitted Receivables (based on the financial condition or circumstances of the obligor thereunder), other than such limited recourse as is reasonable given market standards for transactions of a similar type, taking into account such factors as historical bad debt loss experience and obligor concentration levels.
 
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
 
“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
 
“ Pro Forma Basis ”  means, with respect to any proposed Permitted Acquisition, the Consolidated Total Debt Service, Consolidated Funded Indebtedness (or, in the case of Consolidated Total Interest Expense, all Indebtedness), Consolidated EBITDA and Capital Expenditures for each of the four fiscal quarters immediately preceding such Permitted Acquisition being calculated with reference to the audited historical financial statements of the Person so acquired together with any interim financial statements of such Person so acquired prepared since the date of the last audited financial statements and prepared in a manner consistent with past practices (or, to the extent such Person so acquired has no audited historical financial statements, the management prepared financial statements of such Person so acquired, with such statements to be in form and substance reasonably acceptable to the Administrative Agent), and the Company and its Subsidiaries for the applicable Test Period after giving effect on a pro forma basis to such Permitted Acquisition (and assuming that such Permitted Acquisition had been consummated at the beginning of such Test Period) in the manner described in clauses (i) , (ii) and (iii) below; provided , however , that, in each case, in the event that either no historical financial statements are available with respect to the Person to be acquired, the Person to be acquired is not a separate legal entity, the Company or Subsidiary effecting the acquisition is acquiring only assets of another Person or, in the Administrative Agent’s reasonable discretion it determines the historical financial statements do not adequately reflect the financial statements of the Person or assets to be acquired, such calculations shall be made with reference to reasonable estimates of such past performance made by the Company based on existing data and other available information, such estimates to be acceptable to the Administrative Agent:
 
(i)            all Indebtedness (whether under this Credit Agreement or otherwise) and any other balance sheet adjustments incurred or made in connection with the Permitted Acquisition, if any, shall be deemed to have been incurred or made on the first day of the Test Period, and all Indebtedness of the Person to be acquired in such Permitted
 
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Acquisition which was repaid concurrently with the consummation of the Permitted Acquisition, if any, shall be deemed to have been repaid concurrently with the deemed incurrence of the Indebtedness, if any, incurred in connection with the Permitted Acquisition;
 
(ii)           all Indebtedness assumed to have been incurred pursuant to the preceding clause (i) , if any, shall be deemed to have borne interest at the sum of (a) the arithmetic mean of (x) the Eurocurrency Rate for Eurocurrency Rate Loans denominated in Dollars having an Interest Period of one month in effect on the first day of the Test Period and (y) the Eurocurrency Rate for Eurocurrency Rate Loans denominated in Dollars having an Interest Period of one month in effect on the last day of the Test Period plus (b) the Applicable Rate (after giving effect to the Permitted Acquisition on a Pro Forma Basis); and
 
(iii)          other reasonable cost savings, expenses and other income statement or operating statement adjustments, including, without limitation, those which are attributable to the change in ownership and/or management resulting from such Permitted Acquisition, as in any case are (i) set forth in a schedule delivered to the Administrative Agent concurrent with the consummation of such Permitted Acquisition and (ii) approved by the Administrative Agent, shall be deemed to have been realized on the first day of the Test Period; provided , that the Administrative Agent shall be deemed to have provided such consent if it shall not have objected to any such items within five Business Days of its receipt of such schedule.
 
“ Purchase Price ” means, with respect to any Acquisition, the aggregate amount of consideration for such Acquisition consisting of cash, Indebtedness directly or indirectly incurred or assumed in connection therewith (including, without limitation, Indebtedness of the  Person subject to such Acquisition if effected as an acquisition of such Person’s Equity Interests or merger of such Person with and into the Company or any existing Subsidiary) and contingent obligations to repurchase Equity Interests issued as part of the consideration for such Acquisition.
 
“ Receivables Subsidiary ” means a special purpose, bankruptcy remote wholly-owned Subsidiary of the Company which may be formed for the sole and exclusive purpose of engaging in activities in connection with the purchase, sale and financing of Permitted Receivables in connection with and pursuant to a Permitted Receivables Purchase Facility.
 
“ Register ” has the meaning specified in Section 10.06(c) .
 
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
 
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
 
“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
 
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Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
 
“ Required Lenders ” means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
 
“ Responsible Officer ” means the chief executive officer, president, chief financial officer or treasurer of a Loan Party.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
 
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Company’s stockholders, partners or members (or the equivalent Person thereof).
 
“ Revaluation Date ” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in Euros, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in Euros pursuant to Section 2.02 , and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit denominated in Euros, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in Euros, (iv) in the case of the Existing Letters of Credit, the Closing Date and (v) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.
 
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
 
“ Same Day Funds ” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in Euros, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in Euros.
 
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“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
 
“ Senior Note Documents ” means, collectively, the Senior Notes, that certain Note Purchase Agreement, dated as of May 15, 2003, pursuant to which the Company issued the Senior Notes and any other documents executed in connection therewith, together with any permitted amendments, supplements or modifications thereto.
 
“ Senior Notes ” mean, collectively, (i) the Company’s $50,000,000 4.87% Senior Notes, Series A, due May 15, 2010 and (ii) the Company’s $75,000,000 5.47% Senior Notes, Series B, due May 15, 2013.
 
“ Shareholders’ Equity ” means, as of any date of determination, consolidated shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance with GAAP.
 
“ Spot Rate ” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in Euros.
 
“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership or other entity (“ Other Person ”) of which more than 50% of the outstanding Voting Stock of such Other Person (irrespective of whether at the time Equity Interests of any other class or classes of such Other Person shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
 
“ Subsidiary Guarantors ” means, collectively, (i) all of the Company’s Material Domestic Subsidiaries as of the Closing Date, (ii) all new Material Domestic Subsidiaries which become Subsidiary Guarantors in accordance with Section 6.14 and (iii) all Foreign Subsidiaries of the Company which become Subsidiary Guarantors in accordance with Section 6.15 , in each case, together with their respective successors and assigns.
 
“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index
 
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transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
 
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
 
“ Swing Line ” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04 .
 
“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .
 
“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
 
“ Swing Line Loan ” has the meaning specified in Section 2.04(a) .
 
“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B .
 
“ Swing Line Sublimit ” means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
 
“ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
 
“ TARGET Day ” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system
 
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ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
 
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
“ Test Period ” means, with respect to any Permitted Acquisition, the period of four fiscal quarters included in any covenant calculation and occurring prior to the date of such Permitted Acquisition as set forth in the definition of “Pro Forma Basis”.
 
“ Threshold Amount ” means $25,000,000 .
 
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
 
“ Type ” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
 
“ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
 
“ United States ” and “ U.S. ” mean the United States of America.
 
“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .
 
“ Voting Stock ” means Equity Interests, of any class or classes (however designated), the holders of which are at the time entitled, as such holders, to vote for the election of a majority of the directors (or persons performing similar functions) of the corporation, association, trust or other business entity involved, whether or not the right so to vote exists by reason of the happening of a contingency.
 
1.02         Other Interpretive Provisions .  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
 
(i)             The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such
 
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Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
(ii)            In the computation of periods of time from a specified 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 .”
 
(iii)           Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
 
1.03         Accounting Terms .  (a)  Generally .  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
 
(b)            Changes in GAAP .  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
 
1.04         Exchange Rates; Currency Equivalents .   (a)  The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Euros.  Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise
 
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provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.
 
(b)            Wherever in this Agreement in connection with a Committed Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in Euros, such amount shall be the Euro Equivalent of such Dollar amount (rounded to the nearest Euro, with 0.5 of a Euro being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.
 
1.05         Change of Currency .    Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
 
1.06         Times of Day .   Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
 
1.07         Letter of Credit Amounts .   Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
 
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
 
2.01         Committed Loans .  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “ Committed Loan ”) to the Borrowers in Dollars or in Euros from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided , however , that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01 , prepay under Section 2.05 , and reborrow under this Section 2.01 .  Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
 
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2.02         Borrowings , Conversions and Continuations of Committed Loans.
 
(a)            Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Euros, and (iii) on the requested date of any Borrowing of Base Rate Committed Loans.  Each telephonic notice by a Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower.  Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and 2.04(c) , each Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the currency of the Committed Loans to be borrowed.  If the applicable Borrower fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made in Dollars.  If the applicable Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the applicable Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans; provided , however , that in the case of a failure to timely request a continuation of Committed Loans denominated in Euros, such Loans shall be continued as Eurocurrency Rate Loans in Euros with an Interest Period of one month.  Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans.  If a Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  No Committed Loan may be converted into or continued as a Committed Loan denominated in a different currency, but instead must be prepaid in the original currency of such Committed Loan and reborrowed in the other currency.
 
(b)            Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Committed Loans denominated in Euros, in each case as described in the preceding subsection.  In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable
 
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currency not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided , however , that if, on the date the Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by such Borrower, there are L/C Borrowings outstanding to any Borrower, then the proceeds of such Borrowing, first , shall be applied to the payment in full of any such L/C Borrowings, and, second , shall be made available to such Borrower as provided above.
 
(c)            Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in Dollars or Euros) without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in Euros be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.
 
(d)            The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
 
(e)            After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than six Interest Periods in effect with respect to Committed Loans.
 
2.03         Letters of Credit.
 
(a)            The Letter of Credit Commitment .
 
(i)             Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in Euros for the account of (i) in the case of any Letter of Credit issued at the request of the Company, the Company or any of its Subsidiaries or (ii) in the case of any Letter of Credit issued at the request of a Designated Borrower, such Designated Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
 
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the account of the Borrowers or their respective Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto at the request of the Company, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
 
(ii)            The L/C Issuer shall not issue any Letter of Credit, if:
 
(A)           subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension , unless the Required Lenders have approved such expiry date; or
 
(B)            the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
 
(iii)           The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
 
(A)           any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
 
(B)            the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
 
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(C)            except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $ 500,000 ;
 
(D)           the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
 
(E)            such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
 
(F)            a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Company or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.
 
(iv)           The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
 
(v)            The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
 
(vi)           The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
 
(b)            Procedures for Issuance and Amendment of Letters of Credit ; Auto-Extension Letters of Credit .
 
(i)             Each Letter of Credit shall be issued or amended, as the case may be, upon the request of a Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower or a person designated by a Responsible Officer thereof whose identity is notified in writing to the Administration Agent.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent (A) not later than 11:00 a.m. at least two Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars, and (B) not later than 11:00 a.m. at least ten Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Euros; or in each case such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion.  In the case of a request for an initial issuance of a Letter of Credit, such Letter
 
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of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the name of the applicant therefor and (H) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require.  Additionally, the applicable Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
 
(ii)            Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary thereof) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
 
(iii)           If the applicable Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the applicable Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C
 
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Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
 
(iv)           Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
 
(c)            Drawings and Reimbursements; Funding of Participations .
 
(i)             Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof.  In the case of a Letter of Credit denominated in Euros, the Borrower that requested the issuance of such Letter of Credit shall reimburse the L/C Issuer in Euros, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, such Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that such Borrower will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in Euros, the L/C Issuer shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower that requested the issuance of such Letter of Credit shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency.  If the applicable Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in Euros) (the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Percentage thereof.  In such event, the applicable Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
 
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(ii)            Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the applicable Borrower in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.
 
(iii)           With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .
 
(iv)           Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
 
(v)            Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the applicable Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
 
(vi)           If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate
 
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from time to time in effect.  A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
 
(d)            Repayment of Participations .
 
(i)             At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in Dollars and in the same funds as those received by the Administrative Agent.
 
(ii)            If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
(e)            Obligations Absolute .  The obligation of each Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit requested by such Borrower and to repay each L/C Borrowing in respect of such Letters of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
 
(i)             any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
 
(ii)            the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary thereof may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
 
(iii)           any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the
 
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transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
 
(iv)           any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
 
(v)            any adverse change in the relevant exchange rates or in the availability of Euros to any Borrower or any Subsidiary thereof or in the relevant currency markets generally; or
 
(vi)           any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any Subsidiary thereof.
 
Each Borrower shall promptly examine a copy of each Letter of Credit requested by such Borrower and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will immediately notify the L/C Issuer.  Such Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
 
(f)             Role of L/C Issuer .  Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to a Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves
 
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were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
 
(g)            Cash Collateral .  (i)  Upon the request of the Administrative Agent, (A) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations; provided , that, in the case of the foregoing clause (A) , such cash collateral shall be released to the Borrower upon repayment of such L/C Borrowing or the refinancing of such L/C Borrowing pursuant to a Committed Borrowing.
 
(ii)            In addition, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall Cash Collateralize the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.
 
(iii)           The Administrative Agent may from time to time after the initial deposit of Cash Collateral, at any time that the Outstanding Amount of all L/C Obligations exceeds 100% of the Letter of Credit Sublimit then in effect, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
 
(iv)           Sections 2.05 , 2.06(b) and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.  For purposes of this Section 2.03 , Section 2.05 , Section 2.06(b) and Section 8.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding meanings.  The Company hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in a blocked interest-bearing deposit account at Bank of America.
 
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(h)            Applicability of ISP .  Unless otherwise expressly agreed by the L/C Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.
 
(i)             Letter of Credit Fees .  The Borrowers shall, jointly and severally, pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 .  Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
 
(j)             Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer .  The Borrowers shall, jointly and severally, pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit at the rate per annum specified in the Fee Letter, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears, and due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 .  In addition, the Borrowers shall, jointly and severally, pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
 
(k)            Conflict with Issuer Documents .  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
 
(l)             Letters of Credit Issued for Subsidiaries .  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary thereof, the applicable Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit.  Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
 
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2.04         Swing Line Loans.
 
(a)            The Swing Line .  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , to make loans in Dollars (each such loan, a “ Swing Line Loan ”) to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided , further , that the Company shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 .  Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
 
(b)            Borrowing Procedures .  Each Swing Line Borrowing shall be made upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Company.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Company either by (i)  crediting the account of the Company on the books of the Swing Line Lender in Same Day Funds or (ii) wire transferring such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Swing Line Lender by the Company.
 
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(c)            Refinancing of Swing Line Loans .
 
(i)             The Swing Line Lender at any time in its sole and absolute discretion may (and shall no less than twice per calendar month) request, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 .  The Swing Line Lender shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Company in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.
 
(ii)            If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
 
(iii)           If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
 
(iv)           Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however ,
 
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that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 .  No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein.
 
(d)            Repayment of Participations .
 
(i)             At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
 
(ii)            If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
(e)            Interest for Account of Swing Line Lender .  The Swing Line Lender shall be responsible for invoicing the Company for interest on the Swing Line Loans.  Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
 
(f)             Payments Directly to Swing Line Lender .  The Company shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
 
2.05         Prepayments .  (a)  Each Borrower may, upon notice from such Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Euros, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in Euros shall be in a minimum principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
 
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amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .  Each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
 
(b)            The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
 
(c)            If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Total Outstandings as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided , however , that, subject to the provisions of Section 2.03(g)(ii) , the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect.  The Administrative Agent may from time to time after the initial deposit of such Cash Collateral, at any time that the Total Outstandings exceed 100% of the Aggregate Commitments then in effect, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
 
2.06         Termination or Reduction of Commitments.
 
(a)            Optional Commitment Reductions .  The Company may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Company shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.  Subject to subsection (c) of this Section 2.06 , the amount of any such Aggregate Commitment reduction shall not be applied to the Letter of Credit Sublimit unless otherwise specified by the Company.  Any reduction of the
 
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Aggregate Commitments pursuant to this Section 2.06(a) shall be applied to the Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
 
(b)            Mandatory Commitment Reduction .  Upon the consummation of any Disposition (other than any Disposition permitted under clauses (a) through (h) of Section 7.05 ) by the Company or any Subsidiary, the Aggregate Commitments shall be reduced by an amount equal to the Net Disposition Proceeds of such Disposition; provided , that the following shall not be subject to a reduction of the Aggregate Commitments pursuant to this clause (b) : (x) Net Disposition Proceeds that are reinvested in equipment or other assets within ninety (90) days following receipt thereof and (y) Net Disposition Proceeds of such Dispositions not reinvested as described in the foregoing clause (x) of less than $50,000,000 in the aggregate in any fiscal year.  In connection with any such reduction of the Aggregate Commitments, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Total Outstanding as of the date of such reduction to an amount not to exceed the Aggregate Commitments after giving effect to such reduction; provided , however , that, subject to the provisions of Section 2.03(g)(ii) , the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments after giving effect to such reduction.
 
(c)            Effect on Commitments and Sublimits .  Any reduction of the Aggregate Commitments pursuant to this Section 2.06 shall be applied to the Commitment of each Lender according to its Applicable Percentage.  If, after giving effect to any such reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such sublimit shall be automatically reduced by the amount of such excess.
 
2.07         Repayment of Loans .   (a)  Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans made to such Borrower outstanding on such date.
 
(b)            The Company shall repay each Swing Line Loan on the Maturity Date.
 
2.08         Interest .   (a)  Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate.
 
(b)            (i)  If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
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(ii)            If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(iii)           Upon the request of the Required Lenders, while any Event of Default exists, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(iv)           Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
 
(c)            Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
 
2.09         Fees .   In addition to certain fees described in subsections (i) and (j) of Section 2.03 :
 
(a)            Facility Fee .  The Company shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a facility fee in Dollars equal to the Applicable Rate times the actual daily amount of the Aggregate Commitments regardless of usage (or, if the Aggregate Commitments have terminated, on the Total Outstandings).  The facility fee shall accrue at all times during the Availability Period (and thereafter so long as any Committed Loans, Swing Line Loans or L/C Obligations remain outstanding), including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date (and, if applicable, thereafter on demand).  The facility fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
 
(b)            Utilization Fee .  The Company shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a utilization fee in Dollars equal to the Applicable Rate times the Total Outstandings on each day that the Total Outstandings exceed 50% of the actual daily amount of the Aggregate Commitments then in effect (or, if terminated, in effect immediately prior to such termination).  The utilization fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date  (and, if applicable, thereafter on demand).  The utilization fee shall be calculated quarterly in arrears and if there is any change in the Applicable Rate during any
 
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quarter, the daily amount shall be computed and multiplied by the Applicable Rate for each period during which such Applicable Rate was in effect.  The utilization fee shall accrue at all times, including at any time during which one or more of the conditions in Article IV is not met.
 
(c)            Other Fees .  (i)  The Company shall pay to the Arranger and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
(ii)            The Company shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
2.10         Computation of Interest and Fees .   All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
 
2.11         Evidence of Debt .   (a)  The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or records.  Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
 
(b)            In addition to the accounts and records referred to in subsection (a) , each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such
 
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matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
 
2.12         Payments Generally; Administrative Agent’s Clawback .   (a)  General .  All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Euros, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein.  Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in Euros shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Euros and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States.  If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in Euros, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Euro payment amount.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after 2:00 p.m. in the case of payments in Euros, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
 
(b)            (i)  Funding by Lenders; Presumption by Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans.  If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period.  If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing.  Any payment by such Borrower shall be without
 
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prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
 
(ii)            Payments by Borrowers; Presumptions by Administrative Agent .  Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
 
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
 
(c)            Failure to Satisfy Conditions Precedent .  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this Article II , and such funds are not made available to such Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
 
(d)            Obligations of Lenders Several .  The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c) .
 
(e)            Funding Source .  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
 
2.13         Sharing of Payments by Lenders .   If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater
 
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proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that:
 
(i)             if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
 
(ii)            the provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section 2.13 shall apply).
 
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
 
2.14         Designated Borrowers .   (a)  Effective as of the date hereof, the Initial Designated Borrower shall be a “Designated Borrower” hereunder and may receive Loans for its account and request that Letters of Credit be issued for the account of itself or its Subsidiaries, in each case on the terms and conditions set forth in this Agreement.
 
(b)            The Company may at any time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any additional Subsidiary of the Company (an “ Applicant Borrower ”) as a Designated Borrower to receive Loans and request the issuance of Letters of Credit hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit G (a “ Designated Borrower Request and Assumption Agreement ”).  The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and the Lenders shall have received such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders in their sole discretion, and Notes signed by such new Borrowers to the extent any Lenders so require.  If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans and request the issuance of Letters of Credit hereunder, then promptly following receipt of all such requested resolutions, incumbency
 
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certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit H (a “ Designated Borrower Notice ”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans and request the issuance of Letters of Credit hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by such Designated Borrower until the date five Business Days after such effective date.
 
(c)            The Obligations of the Company and each Designated Borrower shall be joint and several in nature.  Concurrently with the delivery of each Designated Borrower Request and Assumption Agreement, the related Applicable Borrower shall execute and deliver to the Administrative Agent a counterpart of the Guaranty Agreement or such other document as the Administrative Agent shall deem appropriate in order for such Subsidiary to provide an unconditional guaranty of the Obligations of each other Borrower, in form, content and scope reasonably satisfactory to the Administrative Agent.
 
(d)            Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder and (iv) the receipt and examination of a copy any Letter of Credit issued by the L/C Issuer at the request of such Designated Borrower hereunder.  Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein.  Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.
 
(e)            The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that (i) there are no outstanding Loans payable by such Designated Borrower and (ii) there are not outstanding Letters of Credit that were issued at the request of such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it or Letters of Credit issued at its request, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
 
2.15         Increase in Commitments .
 
(a)            Request for Increase .  Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Company may from time to
 
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time, request an increase in the Aggregate Commitments by an amount (for all such requests in the aggregate) not exceeding $75,000,000; provided that any such request for an increase shall be in a minimum amount of $5,000,000.  At the time of sending such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).
 
(b)            Lender Elections to Increase .  Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
 
(c)            Notification by Administrative Agent; Additional Lenders .  The Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent and the L/C Issuer (which approvals shall not be unreasonably withheld), the Company may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
 
(d)            Effective Date and Allocations .  If the Aggregate Commitments are increased in accordance with this Section 2.15 , the Administrative Agent and the Company shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date.
 
(e)            Conditions to Effectiveness of Increase .  As a condition precedent to such increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (II) in the case of the Company, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are (i) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects and (ii) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects, on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in such respects as of such earlier date, and except that for purposes of this Section 2.15 , the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) , respectively, of Section 6.01 , and (B) no Default exists.  The Borrowers shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05 ) on a non-ratable basis to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section 2.15 .
 
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(f)            Conflicting Provisions .  This Section 2.15 shall supersede any provisions in Sections 2.13 or 10.01 to the contrary.
 
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
 
3.01        Taxes.
 
(a)           Payments Free of Taxes .  Any and all payments by or on account of any obligation of the respective Borrowers hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the applicable Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
 
(b)           Payment of Other Taxes by the Borrowers .  Without limiting the provisions of subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
 
(c)           Indemnification by the Borrowers .  Each Borrower shall indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01 ) paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to a Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
 
(d)           Evidence of Payments .  As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
 
(e)           Status of Lenders .  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Company (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested
 
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by the Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
 
Without limiting the generality of the foregoing, in the event that a Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
 
(i)            duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
 
(ii)           duly completed copies of Internal Revenue Service Form W-8ECI,
 
(iii)          in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
 
(iv)          any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Company to determine the withholding or deduction required to be made.
 
Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each Lender agrees promptly to deliver to the Administrative Agent or the Company, as the Administrative Agent or the Company shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such other documents and forms required by any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under such Laws to confirm such Lender’s entitlement to any available exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made to such Lender outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in such other jurisdiction.  Each Lender shall promptly (i) notify the Administrative Agent of any change in circumstances which would modify or render invalid any such  claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous to it, in the reasonable
 
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judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to such Lender.  Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.
 
(f)            Treatment of Certain Refunds .  If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has paid additional amounts pursuant to this Section 3.01 , it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.
 
3.02        Illegality .   If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or Euros), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or Euros in the applicable interbank market, then, on notice thereof by such Lender to the Company through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not
 
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lawfully continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
 
3.03        Inability to Determine Rates .   If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars or Euros) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or Euros), or (c) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Company and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
 
3.04        Increased Costs; Reserves on Eurocurrency Rate Loans .
 
(a)           Increased Costs Generally .  If any Change in Law shall:
 
(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) , other than as set forth below) or the L/C Issuer;
 
(ii)           subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurocurrency Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or
 
(iii)          impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;
 
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C
 
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Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
 
(b)           Capital Requirements .  If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
 
(c)           Certificates for Reimbursement .  A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04 and delivered to the Company shall be conclusive absent manifest error.  The Company shall pay (or cause the applicable Designated Borrower to pay) such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
 
(d)           Delay in Requests .  Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
 
(e)           Additional Reserve Requirements .  The Company shall pay (or cause the applicable Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required
 
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to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Company shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of such notice.
 
3.05        Compensation for Losses .   Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
 
(a)           any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
 
(b)           any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to (i) prepay or borrow any Loan other than a Base Rate Loan or (ii) continue or convert any Loan as or into a Eurocurrency Rate Loan, in each case on the date or in the amount notified by the Company or the applicable Designated Borrower;
 
(c)           any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in Euros on its scheduled due date or any payment thereof in a different currency; or
 
(d)           any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 10.13 ;
 
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract.  The Company shall also pay (or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing.
 
For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
 
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3.06        Mitigation Obligations; Replacement of Lenders.
 
(a)           Designation of a Different Lending Office .  If any Lender requests compensation under Section 3.04 , or any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Company hereby agrees to pay (or to cause the applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
 
(b)           Replacement of Lenders .  If any Lender requests compensation under Section 3.04 , or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , the Company may replace such Lender in accordance with Section 10.13 .
 
3.07        Survival .   All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
 
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
 
4.01        Conditions of Initial Credit Extension .   The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
 
(a)           The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as evidenced by a recent extract from the Dutch Trade Register or otherwise), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
 
(i)            counterparts of (i) this Agreement executed by each Borrower and (ii) a Guaranty executed by each Borrower and each Material Domestic Subsidiary as of the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
 
(ii)           Notes executed by the Borrowers in favor of each Lender requesting Notes;
 
(iii)          such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative
 
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Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
 
(iv)          such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
 
(v)           a favorable opinion of (i) Goodwin Procter LLP, U.S. counsel to the Loan Parties, in the form attached hereto as Exhibit I-1 , and (ii) CMS Derks Star Busmann, Dutch counsel to the Initial Designated Borrower, in the form attached hereto as Exhibit I-2 , in each case, addressed to the Administrative Agent and each Lender, in form and substance acceptable to the Administrative Agent and each Lender;
 
(vi)          a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
 
(vii)         a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
 
(viii)        evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens, if any, securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
 
(ix)           such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
 
(b)           Any fees required to be paid on or before the Closing Date shall have been paid.
 
(c)           Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
 
Without limiting the generality of the provisions of Section 9.04 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has
 
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signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
 
4.02        Conditions to all Credit Extensions .   The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
 
(a)           The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (x) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects and (y) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects, on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in such respects as of such earlier date, and except that for purposes of this Section 4.02 , the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) , respectively, of Section 6.01 .
 
(b)           No Default shall exist, or would result from such proposed Credit Extension or the application of the proceeds thereof.
 
(c)           The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
 
(d)           If the applicable Borrower is a Designated Borrower (other than the Initial Designated Borrower), then the conditions of Section 2.14(b) to the designation of such Borrower as a Designated Borrower shall have been met to the satisfaction of the Administrative Agent.
 
(e)           In the case of a Credit Extension to be denominated in Euros, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in Euros) or the L/C Issuer (in the case of any Letter of Credit to be denominated in Euros) would make it impracticable for such Credit Extension to be denominated in Euros.
 
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by a Borrower shall be deemed to be a representation and warranty by such Borrower that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
 
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
 
Except as otherwise provided in Section 5.20 , each Borrower represents and warrants to the Administrative Agent and the Lenders that:
 
5.01        Existence , Qualification and Power; Compliance with Laws.   Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing (to the extent such concept is applicable to such entity) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws; except in each case referred to in clause (b)(i) , (c) or (d) , to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
5.02        Authorization; No Contravention .   The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.  Each Loan Party and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (b)(i) , except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
5.03        Governmental Authorization; Other Consents .   No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person (other than those already obtained) is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document.
 
5.04        Binding Effect .   This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms.
 
5.05        Financial Statements; No Material Adverse Effect.
 
(a)           The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Company and its Subsidiaries as of the
 
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date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
 
(b)           The unaudited consolidated and consolidating balance sheet of the Company and its Subsidiaries dated June 27, 2004, and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness, subject, in the case of clauses (i) , (ii) and (iii), to the absence of footnotes and to normal year-end audit adjustments.
 
(c)           There has been furnished to each Lender a copy of the projections of the annual operating budgets of the Company and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the 2004 to 2009 fiscal years.  The Company has disclosed all material assumptions made with respect to general economic, financial and market conditions used in formulating such projections and such projections.  The projections reflect the reasonable estimates of the Company and its Subsidiaries of the results of operations and other information projected therein.
 
(d)           Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
 
5.06        Litigation .   There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company, threatened at law, in equity, in arbitration or before any Governmental Authority, by or against the Company or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06 , either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
 
5.07        No Default .   Neither the Company nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
 
5.08        Ownership of Property; Liens .   Each of the Company and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
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The property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01 .
 
5.09        Environmental Compliance .   The Company and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Company has reasonably concluded that, except as specifically disclosed in Schedule 5.09 , such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
5.10        Insurance .   The properties of the Company and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Company, in such amounts (after giving effect to any self-insurance compatible with the following standards) , with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Subsidiary operates.
 
5.11        Taxes .   The Company and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect.  Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
 
5.12        ERISA Compliance.
 
(a)           Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Company, nothing has occurred which could reasonably be expected to prevent, or cause the loss of, such qualification.  The Company and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
 
(b)           There are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
 
(c)           (i)(x) No ERISA Event has occurred or is reasonably expected to occur; (y) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
 
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liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and (z) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan, that, in the case of the foregoing clauses (x) , (y) and (z) in the aggregate, has resulted or could reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount; (ii) no Pension Plan has any Unfunded Pension Liability in excess of the Threshold Amount; and (iii) neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
 
5.13        Subsidiaries; Equity Interests .  As of the Closing Date, the Company has no Subsidiaries other than those specifically disclosed in Schedule 5.13 , and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Subsidiary in the amounts specified on Schedule 5.13 free and clear of all Liens.  All of the outstanding Equity Interests in the Company have been validly issued and are fully paid and nonassessable.
 
5.14        Margin Regulations; Investment Company Act; Public Utility Holding Company Act.
 
(a)           No Borrower is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the applicable Borrower only or of the Company and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between any Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.
 
(b)           None of the Company, any Person Controlling the Company, or any Subsidiary (i) is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
 
5.15        Disclosure .   No report, financial statement, certificate or other information furnished (in writing) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact (known to the Company or any of its Subsidiaries in the case of any document or information not furnished by one of its Subsidiaries) necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Company
 
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represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
 
5.16        Compliance with Laws .   Each of the Company and each Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
5.17        Intellectual Property; Licenses , Etc.   The Company and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person.  To the best knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any rights held by any other Person.  No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
5.18        Senior Note Documents .   The Company has heretofore furnished to the Administrative Agent true, complete and correct copies of the Senior Note Documents (including schedules, exhibits and annexes thereto).  The Senior Note Documents have not been amended, supplemented or modified since the Closing Date (except as otherwise consented to by the Required Lenders) and constitute the complete understanding among the parties thereto in respect of the matters and transactions covered thereby.  No “Event of Default” under (and as defined in) the Senior Note Indenture has occurred and is continuing.
 
5.19        Material Domestic Subsidiaries .  As of the Closing Date Schedule 5.19 , or as of the date thereof the most recent supplement to Schedule 5.19 delivered by the Company pursuant to Section 6.02(f) or Section 7.04(c)(iv) , sets forth Domestic Subsidiaries of the Company (on a Pro Forma Basis, in the case of any supplement delivered pursuant to Section 7.04(c)(iv) ) (i) the total assets of which (not including Equity Interests of its Subsidiaries), in the aggregate together with the total assets of the Company (not including Equity Interests of its Subsidiaries), exceed eighty-five percent (85.0%) of the total assets of the Company and its Domestic Subsidiaries in the aggregate (not including Equity Interests of their respective Subsidiaries) and (ii) the EBITDA of which for the most recently ended fiscal quarter, in the aggregate together with the EBITDA of the Company for such fiscal quarter, exceeds eighty-five percent (85.0%) of the EBITDA of the Company and its Domestic Subsidiaries in the aggregate for such fiscal quarter.
 
5.20        Representations as to Foreign Obligors .   Each of the Company and each Foreign Obligor represents and warrants to the Administrative Agent and the Lenders that:
 
(a)           Such Foreign Obligor is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents to which it is a party
 
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(collectively as to such Foreign Obligor, the “ Applicable Foreign Obligor Documents ”), and the execution, delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will constitute private and commercial acts and not public or governmental acts.  Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Obligor is organized and existing in respect of its obligations under the Applicable Foreign Obligor Documents.
 
(b)           The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents.  It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Foreign Obligor is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Foreign Obligor Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been made or is not required to be made until the Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely paid.
 
(c)           There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except as has been disclosed to the Administrative Agent.
 
(d)           The execution, delivery and performance of the Applicable Foreign Obligor Documents executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the jurisdiction in which such Foreign Obligor is organized and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot be made or obtained until a later date ( provided that any notification or authorization described in clause (ii) shall be made or obtained as soon as is reasonably practicable).
 
5.21        Dutch Companies.
 
(a)           Either (i) none of the activities of the Initial Designated Borrower not related to this Agreement or any of the Loan Documents has brought or will bring it within the definition of a “credit institution” ( kredientinstelling ) as defined in Section 1 of the Act on the Supervision of the Credit System 1992 ( Wet Toezicht Kredietwezen 1992 ) (the “ ASCI ”) or (ii) the Initial Designated Borrower has the benefit of either (x) an appropriate individual dispensation given by the Dutch Central Bank ( De Nederlandsche Bank N.V. ) on the basis of Section 6 Sub-paragraph 3 of the ASCI or (y) an exemption on the basis of Section 6 Sub-paragraph 2 of the ASCI and, in
 
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either case, the Company at all times has complied with all requirements applicable to it under the ASCI and the regulations based on the ASCI.
 
(b)           Entering into this Agreement and the other Loan Document and performing its obligations hereunder and thereunder does not and will not bring the Initial Designated Borrower within the definition of a “credit institution” ( kredietinstelling ) as defined in Section 1 of the ASCI because the Initial Designated Borrower is and has always been the holding company of a group of European industrial Subsidiaries and has always been actively involved and concerned with the management and the business of its Subsidiaries. The Initial Designated Borrower does not passively invest in any of its Subsidiaries, nor has it done so in the past. The Loans and each previous loan provided to the Initial Designated Borrower serve and have always served solely and will only be used solely to support the activities and/or business of its Subsidiaries. In the event the Initial Designated Borrower would change any of the above characteristics of its business, it will always comply with all applicable regulatory requirements (if any).
 
(c)           No works council ( ondernemingsraad ) has been established or is in the process of being established with respect to the business of the Initial Designated Borrower.
 
(d)           To the best of the Company’s and its Subsidiaries’ knowledge, none of the assets owned by the Initial Designated Borrower have a public utility function, such that seizure of these assets is prohibited by virtue of sections 436 and 703 of the Dutch Code of Civil Procedure.
 
5.22        OFAC .  None of the Loan Parties, any Subsidiary of any Loan Party or any Affiliate of any Loan Party (a) is a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/ index.html, or as otherwise published from time to time; (b) is (i) an agency of the government of a country, (ii) an organization controlled by a country, or (iii) a Person resident in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time, as such program may be applicable to such agency, organization or Person; (c) derives more than 15% of its assets or operating income from investments in or transactions with any such country, agency, organization or Person; or (d) will use the proceeds of any Loan to finance any operations, investments or activities in, or make any payments to, any such country, agency, organization, or Person.
 
ARTICLE VI.
AFFIRMATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , and 6.03 ) cause each Subsidiary to:
 
6.01        Financial Statements .   Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
 
(a)           as soon as practicable, but in any event on or prior to the date 90 days after the end of each fiscal year (or, if earlier, the date five days after the date by which the Company
 
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shall be required to submit its Form 10-K (or any successor form) to the Commission with respect to such fiscal year), (i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and such consolidating statements to be certified by a Responsible Officer of the Company to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of the Company and its Subsidiaries and (ii) consolidating statements of income or operations for the Company and its Subsidiaries to the extent that such financial statements are prepared and distributed to the senior management of the Company with respect to such fiscal year; and
 
(b)           as soon as practicable, but in any event on or prior to the date 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (or, if earlier, the date five days after the date by which the Company shall be required to submit its Form 10-Q (or any successor form) to the Commission with respect to such fiscal quarter), (x) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by a Responsible Officer of the Company as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and (y) consolidating statements of income or operations for the Company and its Subsidiaries to the extent that such financial statements are prepared and distributed to the senior management of the Company with respect to such fiscal quarter, such consolidating statements to be certified by a Responsible Officer of the Company to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of the Company and its Subsidiaries.
 
As to any information contained in materials furnished pursuant to Section 6.02(d) , the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
 
6.02        Certificates; Other Information .   Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
 
(a)           concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) , a duly completed Compliance Certificate signed by a Responsible Officer of the Company;
 
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(b)           promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Company by independent accountants in connection with the accounts or books of the Company or any Subsidiary, or any audit of any of them;
 
(c)           promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
 
(d)           promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02 ;
 
(e)           promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
 
(f)            in the event the Company or any Domestic Subsidiary shall (i) engage in any corporate reorganization, (ii) contribute to the capital of or otherwise make an Investment in any Subsidiary or (iii) consummate any Disposition of property described in Section 7.05(e) , in each case other than in the ordinary course of business, which transaction shall result in Domestic Subsidiaries that are not Subsidiary Guarantors (x) the total assets of which, in the aggregate, exceed fifteen percent (15.0%) of the total assets of the Company and its Domestic Subsidiaries in the aggregate or (y) the EBITDA of which, in the aggregate for the most recent fiscal quarter, exceeds fifteen percent (15.0%) of the EBITDA of the Company and its Domestic Subsidiaries in the aggregate for such fiscal quarter, the Company shall, promptly and in any event within thirty days of the consummation of such transaction, deliver to the Administrative Agent a supplement to Schedule 5.19 necessary to make the representation set forth in Section 5.19 true and correct as of the date of such supplement; and
 
(g)           promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
 
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02 ; or (ii) on
 
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which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents.  Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent.  Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
 
6.03        Notices .   Promptly notify the Administrative Agent and each Lender:
 
(a)           of the occurrence of any Default;
 
(b)           of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Company or any Subsidiary, including pursuant to any applicable Environmental Laws;
 
(c)           of the occurrence of any ERISA Event;
 
(d)           of any material change in accounting policies of, or financial reporting practices by, the Company or any Subsidiary; and
 
(e)           of any announcement by Moody’s or S&P of any change or, to the extent a Responsible Officer of the Company has actual knowledge thereof, any possible change in a Debt Rating.
 
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and, if appropriate, stating what action the Company has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
 
6.04        Payment of Obligations .   Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when
 
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due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness; unless, in the case of any matter described in clauses (a), (b), and (c) above, the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary.
 
6.05        Preservation of Existence , Etc.   (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
 
6.06        Maintenance of Properties .   (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
6.07        Maintenance of Insurance .   Maintain with financially sound and reputable insurance companies not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business and geographic area, of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons.
 
6.08        C ompliance with Laws.   Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
 
6.09        Books and Records.   Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such Subsidiary, as the case may be.
 
6.10        Inspection Rights .  Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Company; provided , the Company shall pay all costs and expenses of one such inspection per year (measured beginning with the
 
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Closing Date and each anniversary thereof) by the Administrative Agent and its representatives and independent contractors (and any representatives and independent contractors of the Lenders participating in such inspection); provided further , however , that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice.
 
6.11        Use of Proceeds .   Use the proceeds of the Credit Extensions for general corporate purposes, Capital Expenditures and Permitted Acquisitions, in each case not in contravention of any Law or of any Loan Document.
 
6.12        Approvals and Authorizations .   Maintain all authorizations, consents, approvals and licenses from, exemptions of, and filings and registrations with, each Governmental Authority of the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and consents of each other Person in such jurisdiction, in each case that are required in connection with the execution, delivery and performance by such Foreign Obligor of the Loan Documents to which it is a party.
 
6.13        Amendments to Governing Documents .   Promptly furnish to the Administrative Agent any material amendment, supplement or modification to any of such Person’s Organization Documents permitted by Section 7.11 .
 
6.14        Additional Subsidiary Guarantors .  In addition to causing each Material Domestic Subsidiary as of the Closing Date to execute and deliver a Guaranty, each as required by Section 4.01(a) , cause each Subsidiary that becomes a Material Domestic Subsidiary after the Closing Date, as promptly as possible, but in any event within ninety (90) days after submission to the Administrative Agent by the Company of a supplement to Schedule 5.19 as required by Section 6.02(f) or Section 7.04(c)(iii) which supplement indicates that such Subsidiary has become a Material Domestic Subsidiary, to (x) become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty Agreement or such other document as the Administrative Agent shall deem appropriate in order for such Subsidiary to provide an unconditional guaranty of the Obligations of the Borrowers and (y) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, if requested by the Administration Agent, favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (x) ), all in form, content and scope reasonably satisfactory to the Administrative Agent.
 
6.15        Foreign Subsidiary Guarantors .  Cause each Foreign Subsidiary listed on Schedule 6.15 , on or before the date sixty (60) days after the Closing Date or such later date as may be agreed to in writing by the Administrative Agent in its sole discretion, to (x) become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty Agreement or such other document as the Administrative Agent shall deem appropriate in order for such Subsidiary to provide an unconditional guaranty of the Obligations of the Borrowers and (y) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and  favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of
 
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the documentation referred to in clause (x) ), all in form, content and scope reasonably satisfactory to the Administrative Agent.
 
6.16        Further Assurances .  Cooperate with the Lenders and the Administrative Agent and execute such further instruments and documents as the Lenders or the Administrative Agent shall reasonably request to carry out to their satisfaction the transactions contemplated by this Agreement and the other Loan Documents.
 
ARTICLE VII.
NEGATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall not, nor shall it permit any Subsidiary to, directly or indirectly:
 
7.01        Liens .   Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
 
(a)           Liens pursuant to any Loan Document;
 
(b)           Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed in any material respect, (ii) the amount secured or benefited thereby is not increased, and (iii) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03 ;
 
(c)           Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
 
(d)           carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;
 
(e)           pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
 
(f)            deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
 
(g)           easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
 
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(h)           Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
 
(i)            Liens securing Indebtedness permitted under Sections 7.03(f) and 7.03(j) ; and
 
(j)            Liens on any property owned by Watts Germany, any Subsidiary thereof or any German Subsidiary of which Watts Germany is a Subsidiary, in each case securing Indebtedness permitted by Section 7.03(g) .
 
7.02        Investments .   Make any Investments, except:
 
(a)           existing Investments in Subsidiaries and other Investments in existence on the Closing Date and described in Schedule 7.02 and any renewal or extension of any such Investments that does not increase the amount of the Investment being renewed or extended as determined as of such date of renewal or extension;
 
(b)           Investments held by the Company or such Subsidiary in the form of cash equivalents or short-term marketable debt securities;
 
(c)           subject to the limitations set forth in the Sarbanes-Oxley Act of 2002 and all rules and regulations related thereto, (i) advances to officers, directors and employees of the Company and Subsidiaries for travel, entertainment, relocation and analogous ordinary business purposes and (ii) loans to employees of the Company pursuant to the terms of the Company’s non-qualified stock option plan, secured by pledges of the Equity Interests of the Company owned by such employee; provided that the aggregate outstanding amount of such Investments permitted pursuant to this Section 7.02(c) shall not exceed $3,000,000 at any time;
 
(d)           Investments of any Loan Party in any other Loan Party;
 
(e)           Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
 
(f)            Guarantees permitted by Section 7.03 ;
 
(g)           Investments (other than Investments permitted pursuant to Section 7.02(a) ) in joint ventures in lines of business that are the same or similar to the line of business in which the Company and its Subsidiaries are then engaged prior to such Investment, not to exceed $25,000,000 in the aggregate at any time outstanding; and
 
(h)           Investments in Permitted Acquisitions.
 
7.03        Indebtedness .   Create, incur, assume or suffer to exist any Indebtedness, except:
 
(a)           Indebtedness under the Loan Documents;
 
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(b)           Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and not otherwise permitted under this Section 7.03 , and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
 
(c)           obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
 
(d)           unsecured Indebtedness of the Company (including, without limitation, the Senior Notes);
 
(e)           unsecured Indebtedness of any Subsidiary of the Company (other than Watts Germany or any Subsidiary thereof) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;
 
(f)            secured Indebtedness (including Attributable Indebtedness in respect of capital leases, Synthetic Lease Obligations and Permitted Receivables Purchase Facilities and Indebtedness in respect of purchase money obligations for fixed or capital assets ) of the Company or any of its Subsidiaries (other than Watts Germany) in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
 
(g)           Indebtedness of Watts Germany or any Subsidiary thereof in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that no Loan Party shall provide a Guarantee of such Indebtedness other than (i) any Subsidiary of Watts Germany or (ii) any German Subsidiary of which Watts Germany is a Subsidiary;
 
(h)           except as set forth in Section 7.03(g) , G uarantees of any Loan Party in respect of Indebtedness otherwise permitted hereunder of any Loan Party;
 
(i)            unsecured Indebtedness of any Loan Party to any other Loan Party; and
 
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(j)            Indebtedness of any Subsidiary of the Company that is not a Loan Party to any Loan Party in an aggregate principal amount not to exceed $20,000,000 at any time outstanding.
 
7.04        Fundamental Changes; Permitted Acquisitions.   Merge, dissolve, liquidate, consolidate with or into another Person, Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, or agree to or effect any Acquisition except that, so long as no Default exists or would result therefrom:
 
(a)           any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into (i) the Company, provided that the Company shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that (x) when any Designated Borrower is liquidating or dissolving into, or merging with and into, another Subsidiary, a Designated Borrower shall be the continuing or surviving Person and (y) when any Subsidiary Guarantor is liquidating or dissolving into, or merging with and into, another Subsidiary other than any Designated Borrower, a Subsidiary Guarantor shall be the continuing or surviving Person;
 
(b)           any Subsidiary (other than any Designated Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor , then the transferee must be a Loan Party;
 
(c)           the Company or any Subsidiary may consummate any Acquisition with respect to which the following conditions are satisfied (a “ Permitted Acquisition ”):
 
(i)            the Person to be acquired is not engaged in any material line of business substantially different from those lines of business conducted by the Company and its Subsidiaries on the date hereof or any business substantially related or incidental thereto;
 
(ii)           the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the Company or the applicable Subsidiary and of the Person to be acquired has approved such Acquisition;
 
(iii)          any Indebtedness directly or indirectly incurred or assumed in connection with such Acquisition shall have been permitted to be incurred or assumed pursuant to Section 7.03 ;
 
(iv)          if the Purchase Price for such Acquisition is greater than or equal to $50,000,000, then concurrent with the consummation of such Acquisition, the Company shall have delivered to the Administrative Agent (A) a Compliance Certificate prepared on a Pro Forma Basis (1) demonstrating that the Consolidated Leverage Ratio as of the end of the most recent fiscal quarter does not exceed 2.75:1.00 and (2) demonstrating compliance with the financial covenants set forth in Section 7.13(a) and (b) as of the end of the most recently completed fiscal quarter, (B) a supplement to Schedule 5.19 setting forth Subsidiaries of the Company necessary to make the representation and warranty set forth in Section 5.19 true and correct after giving effect to such Permitted Acquisition and (C) a certificate from the chief financial officer of the Company to the effect that (1)
 
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the Company and its Subsidiaries, on a consolidated and consolidating basis, will be solvent both before and after consummating such Acquisition and (2) no Default or Event of Default then exists or would result after giving effect to such Acquisition;
 
(v)           in the case of an Acquisition of Equity Interests by the Company or such Subsidiary, the issuer of such Equity Interests shall become a wholly owned Subsidiary of the Company;
 
(vi)          the business to be acquired would not subject the Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of any of its rights and remedies under this Agreement or any other Loan Document;
 
(vii)         no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition which (x) are required to be described in the footnotes of the Company’s financial statements in accordance with GAAP and (y) could reasonably be expected to have a Material Adverse Effect;
 
(viii)        the aggregate Purchase Price for such Acquisition (or any series of related Acquisitions) shall not exceed $100,000,000; and
 
(ix)           the Consolidated Leverage Ratio immediately after giving effect to such Acquisition on a Pro Forma Basis shall not exceed 2.75:1.00.
 
7.05        Dispositions.   Make any Disposition or enter into any agreement to make any Disposition, except:
 
(a)           Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
 
(b)           Dispositions of inventory in the ordinary course of business;
 
(c)           Dispositions of Permitted Receivables pursuant to Permitted Receivables Purchase Facilities;
 
(d)           Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
 
(e)           Dispositions of property by any Subsidiary to the Company or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party;
 
(f)            Dispositions permitted by Section 7.04 ;
 
(g)           Dispositions by the Company and its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date;
 
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(h)           licenses of IP Rights, which licenses shall not, in the case of any license resulting in annual payments to the Company or any Subsidiary in excess of 1% of total consolidated sales of the Company during any such year, have a term exceeding fifteen years; and
 
(i)            Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05 ; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this clause (i) in any fiscal year shall not exceed 12.5% of Consolidated Total Assets as of the end of the preceding fiscal year;
 
provided , however , that any Disposition pursuant to clauses (a) through (i) shall be for fair market value.
 
7.06        Restricted Payments.   Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so unless no Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom.
 
7.07        Change in Nature of Business.   Engage in any material line of business substantially different from those lines of business conducted by the Company and its Subsidiaries on the date hereof or any business substantially related or incidental thereto.
 
7.08        Transactions with Affiliates.   Enter into any transaction of any kind with any Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that any Loan Party may enter into transactions relating to any Permitted Receivables Purchase Facility.
 
7.09        Burdensome Agreements.   Enter into or be subject to any Contractual Obligation (other than this Agreement or any other Loan Document or the Senior Note Documents) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to any Loan Party or to otherwise transfer property to any Loan Party, (ii) of any Material Domestic Subsidiary or any other Subsidiary Guarantor to Guarantee the Indebtedness of the Company or (iii) of the Company or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided , however , that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets, in each case solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person; provided , that this Section 7.09 shall not apply to any Contractual Obligation binding solely on Watts Germany or any Subsidiary thereof.
 
7.10        Use of Proceeds.   Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the
 
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purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
 
7.11        Modification of Organization Documents.  Consent to or agree to any amendment, supplement or other modification to the Organization Documents without the prior written consent of the Administrative Agent unless such amendment, supplement or modification could not reasonably be expected to have a Material Adverse Effect.
 
7.12        Senior Note Documents.  Amend, supplement or otherwise modify the terms of any of the Senior Note Documents unless such amendment, supplement or modification could not reasonably be expected to (i) have a Material Adverse Effect or (ii) have a material adverse effect on the rights and interests of the Administrative Agent and the Lenders under the Loan Documents.
 
7.13        Financial Covenants.
 
(a)           Consolidated Net Worth.  Permit Consolidated Net Worth at any time to be less than the sum of (i) $ 350,000,000, (ii) an amount equal to 50% of the Consolidated Net Income (excluding the impact of foreign currency translation adjustments) earned in each fiscal quarter beginning with the fiscal quarter ending June 27, 2004   (with no deduction for a net loss in any such fiscal quarter) and (iii) an amount equal to 100% of the aggregate increases in Shareholders’ Equity of the Company and its Subsidiaries after the date hereof by reason of the issuance and sale of Equity Interests of the Company  or any Subsidiary (other than issuances to the Company or a wholly-owned Subsidiary), including upon any conversion of debt securities of the Company into such Equity Interests.
 
(b)           Consolidated Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Company to be less than 3.00:1:00.
 
(c)           Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio at the end of any fiscal quarter of the Company to be greater than 3.00:1.00.
 
7.14        Swap Contracts.   Enter into any Swap Contract except for Swap Contracts that are (or were) entered into in the ordinary course of the Company’s or such Subsidiary’s business for the purpose of mitigating risks associated with liabilities, commitments, investments, assets, earnings or properties held or reasonably anticipated by the Company or such Subsidiary, as applicable, and not for purposes of speculation.
 
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
 
8.01        Events of Default.   Any of the following shall constitute an Event of Default:
 
(a)           Non-Payment .  Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation or (ii) within five days after the same becomes due, any interest
 
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on any Loan or on any L/C Obligation, any fee due hereunder or any other amount payable hereunder or under any other Loan Document; or
 
 (b)          Specific Covenants .  The Company fails to perform or observe any term, covenant or agreement contained in any of Section 6.01 , 6.02 , 6.03 , 6.05 , 6.10 , 6.11 , 6.14 or 6.15 or Article VII ; or
 
(c)           Other Defaults .  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or
 
(d)           Representations and Warranties .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith (i) with respect to any representations, warranties, certifications or statements that contain a materiality qualifier, shall be incorrect or misleading in any respect when made or deemed made and (ii) with respect to any representations, warranties, certifications or statements that do not contain a materiality qualifier, shall be incorrect or misleading in any material respect when made or deemed made; or
 
(e)           Cross-Default .  (i) The Company or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Company or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Company or such Subsidiary as a result thereof is greater than the Threshold Amount; or (iii) there occurs any termination, liquidation, unwind or similar event or circumstance under any Permitted Receivables Purchase Facility, which permits any purchaser of receivables thereunder to cease purchasing such receivables or to apply all collections on previously purchased receivables thereunder to the repayment of such purchaser’s interest in such previously purchased receivables (other than any such event or circumstance that arises solely as a result of a down-grading of the credit rating of any bank or financial institution not
 
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affiliated with the Company that provides liquidity, credit or other support in connection with such facility) and the Attributable Indebtedness in respect of such Permitted Receivables Purchase Facility is greater than the Threshold Amount; or
 
(f)            Insolvency Proceedings, Etc.   Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property (or any Loan Party or any of its Subsidiaries takes any corporate action to authorize or effect any of the foregoing actions); or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 45 calendar days, or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 45 calendar days, or an order for relief is entered in any such proceeding (or any Loan Party or any of its Subsidiaries fails to contest in good faith any such appointment or proceeding); or
 
(g)           Inability to Pay Debts; Attachment .  (i) The Company or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
 
(h)           Judgments .  There is entered against the Company or any Subsidiary (i) a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
 
(i)            ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
 
(j)            Invalidity of Loan Documents .  Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or
 
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obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
 
(k)           Change of Control .  There occurs any Change of Control.
 
8.02        Remedies Upon Event of Default.   If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
 
(a)           declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
 
(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
 
(c)           require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
 
(d)           exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;
 
provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
 
8.03        Application of Funds.   After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
 
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
 
Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or
 
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the L/C Issuer) and amounts payable under Article III ), ratably among them in proportion to the amounts described in this clause Second payable to them;
 
Third , to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
 
Fourth , to payment of (i) that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and (ii) that portion of the Obligations constituting Guaranteed Swap Obligations, ratably among the Lenders (and Affiliates thereof) and the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them;
 
Fifth , to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
 
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or as otherwise required by Law.
 
Subject to Section 2.03(c) , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
 
ARTICLE IX.
ADMINISTRATIVE AGENT
 
9.01        Appointment and Authority.
 
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Borrower shall have rights as a third party beneficiary of any of such provisions.
 
9.02        Rights as a Lender .   The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
 
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9.03        Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:
 
(a)           shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
 
(b)           shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
 
(c)           shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Company, a Lender or the L/C Issuer.
 
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
 
9.04        Reliance by Administrative Agent.
 
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
 
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authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
 
9.05        Delegation of Duties.   The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
 
9.06        Resignation of Administrative Agent.   The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Company.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 9.06 .  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06 ).  The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company
 
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and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
 
Any resignation by Bank of America as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangement satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
 
9.07        Non-Reliance on Administrative Agent and Other Lenders.   Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
 
9.08        No Other Duties , Etc.   Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents or Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
 
9.09        Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
 
(a)           to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and
 
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advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j) , 2.09 and 10.04 ) allowed in such judicial proceeding; and
 
(b)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04 .
 
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
 
9.10        Guaranty Matters.  The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Subsidiary Guarantor from its obligations under the Guaranty Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under a Guaranty pursuant to this Section 9.10 .
 
ARTICLE X.
MISCELLANEOUS
 
10.01      Amendments , Etc.   No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall:
 
(a)           waive any condition set forth in Section 4.01(a) without the written consent of each Lender;
 
(b)           extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) or reduce the Commitment of any Lender pursuant to Section 2.06 other than in accordance with its pro rata share of the related reduction of the Aggregate Commitment, in any case without the written consent of such Lender;
 
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(c)           postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) or under any other Loan Document without the written consent of each Lender directly affected thereby;
 
(d)           reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary ( i) to amend the definition of “Default Rate” or to waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder ;
 
(e)           change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
 
(f)            change any provision of Article II or the definition of “Applicable Percentage” or any other provision hereof in manner that would cause any Lender to be obligated to make any Committed Loan or participate in any Letter of Credit or Swing Line Loan, in any case other than in accordance with its pro rata share of the Aggregate Commitment, without the written consent of such Lender;
 
(g)           change any provision of this Section 10.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
 
(h)           release any Borrower from the Guaranties or all or substantially all of the Subsidiary Guarantors from the Guaranties without the written consent of each Lender ;
 
and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
 
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10.02      Notices ; Effectiveness; Electronic Communication.
 
(a)           Notices Generally .  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)            if to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02 ; and
 
(ii)           if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
 
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b) .
 
(b)           Electronic Communications .  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
 
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
 
(c)           Change of Address, Etc.   Each of the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other
 
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communications hereunder by notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender.
 
(d)           Reliance by Administrative Agent, L/C Issuer and Lenders .  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
 
10.03      No Waiver ; Cumulative Remedies.   No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
 
10.04      Expenses ; Indemnity; Damage Waiver.
 
(a)           Costs and Expenses .  The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer) , and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer , in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.04 , or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
 
(b)           Indemnification by the Company .  The Company shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”)
 
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against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee) , and shall indemnify and hold harmless each Indemnitee from all reasonable fees and time charges and disbursements for attorneys who may be employees of any Indemnitee , incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is a party thereto , in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee ; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
 
(c)           Reimbursement by Lenders .  To the extent that the Company for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .
 
(d)           Waiver of Consequential Damages, Etc.   To the fullest extent permitted by applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any
 
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other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
 
(e)           Payments .  All amounts due under this Section 10.04 shall be payable not later than fifteen Business Days after demand therefor.
 
(f)            Survival .  The agreements in this Section 10.04 shall survive the resignation of the Administrative Agent and the L/C Issuer , the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
 
10.05      Payments Set Aside .   To the extent that any payment by or on behalf of any Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
 
10.06      Successors and Assigns.
 
(a)           Successors and Assigns Generally .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section 10.06 , (ii) by way of participation in accordance with the provisions of subsection (d) of this Section 10.06 , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section 10.06 (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in
 
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subsection (d) of this Section 10.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)           Assignments by Lenders .  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
 
(i)            except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed);
 
(ii)           each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing Line Loans;
 
(iii)          any assignment of a Commitment must be approved by the Administrative Agent, the L/C Issuer (as described in clause (ii) of the definition thereof), the Swing Line Lender and, so long as no Event of Default has occurred and is continuing, the Company and the Initial Designated Borrower, unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); provided , that such consents shall not be unreasonably withheld; and
 
(iv)          the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
 
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section 10.06 , from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its
 
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obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 , and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 10.06 .
 
(c)           Register .  The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by each of the Borrowers and the L/C Issuer at any reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register.
 
(d)           Participations .  Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
 
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this Section 10.06 , each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 10.06 .  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
 
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(e)           Limitation upon Participant Rights .  A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as though it were a Lender.
 
(f)            Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
(g)           Electronic Execution of Assignments .  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
 
(h)           Resignation as L/C Issuer or Swing Line Lender after Assignment .  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Company, resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided , however , that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) .
 
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10.07      Treatment of Certain Information ; Confidentiality.   Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.07 , to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 10.07 or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company.
 
For purposes of this Section 10.07 , “ Information ” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary, provided that, in the case of information received from the Company or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section 10.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
 
10.08      Right of Setoff.   If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to
 
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other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
 
10.09      Interest Rate Limitation.   Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
 
10.10      Counterparts ; Integration; Effectiveness.   This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
 
10.11      Survival of Representations and Warranties.   All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
 
10.12      Severability.   If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The
 
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invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
10.13      Replacement of Lenders.   If any Lender requests compensation under Section 3.04 , or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender is a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
 
(a)           the Company shall have paid (or caused a Designated Subsidiary to pay) to the Administrative Agent the assignment fee specified in Section 10.06(b) ;
 
(b)           such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or applicable Designated Subsidiary (in the case of all other amounts);
 
(c)           in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter; and
 
(d)           such assignment does not conflict with applicable Laws.
 
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
 
10.14      Governing Law ; Jurisdiction; Etc.
 
(a)           GOVERNING LAW .  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
(b)           SUBMISSION TO JURISDICTION .  EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
 
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DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
(c)           WAIVER OF VENUE .  EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION 10.14.   EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
 
(d)           SERVICE OF PROCESS .  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 .  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
 
10.15      Waiver of Jury Trial.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.15 .
 
10.16      USA PATRIOT Act Notice.   Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify
 
98

 
and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with the Act.
 
10.17      Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of each Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “ Judgment Currency ”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “ Agreement Currency ”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).
 
99

 
IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	/s/ William C. McCartney	 	
 	Name: William C. McCartney	
 	Title: Chief Financial Officer	

 	WATTS INDUSTRIES EUROPE B.V.	

 	By:	/s/ Johan van Kouterik	 	
 	Name: Johan van Kouterik	
 	Title: CFO Europe & Vice President	

Signature Page to
Credit Agreement

 

 	BANK OF AMERICA, N.A., as
Administrative Agent	

 	By:	/s/ David A Johanson	 	
 	Name: David A. Johanson	
 	Title: Vice President	

 

 	BANK OF AMERICA, N.A., as a Lender, an
L/C Issuer and Swing Line Lender	

 	By:	/s/ Jennifer L. Gerdes	 	
 	Name: Jennifer L. Gerdes	
 	Title: Senior Vice President	

 

 	JPMORGAN CHASE BANK , as a
Syndication Agent and a Lender	

 	By:	A. Neil Sweeny	 	
 	Name: A. Neil Sweeny	
 	Title: Vice President	

 

 	WACHOVIA BANK, NATIONAL
ASSOCIATION , as a Syndication Agent
and a Lender	

 	By:	/s/ Sarah T. Warren	 	
 	Name: Sarah T. Warren	
 	Title: Director	

 

 	KEYBANK NATIONAL ASSOCIATION ,
as a Documentation Agent and a Lender	

 	By:	/s/ Thomas J. Purcell	 	
 	Name: Thomas J. Purcell	
 	Title: Senior Vice President	

 

 	SUNTRUST BANK, as a Documentation
Agent and a Lender	

 	By:	/s/ Brian M. Davis	 	
 	Name: Brian M. Davis	
 	Title: Director	

 

 	HSBC BANK USA, N.A. , as a Lender	

 	By:	/s/ Patrick Doulin	 	
 	Name: Patrick Doulin	
 	Title: Senior Vice President	

 

 	LASALLE BANK NATIONAL
ASSOCIATION , as a Lender	

 	By:	/s/ Gary A. Pirri	 	
 	Name: Gary A. Pirri	
 	Title: S.V.P.	

 

 	CITIZENS BANK OF MASSACHUSETTS ,
as a Lender	

 	By:	/s/ Stephanie Epkins	 	
 	Name: Stephanie Epkins	
 	Title: VP	

 

 	CALYON NEW YORK BRANCH ,
as a Lender	

 	By:	/s/ Scott R. Chappelka	 	
 	Name: Scott R. Chappelka	
 	Title: Director	

 	By:	/s/ Rod Hurst	 	
 	Name: Rod Hurst	
 	Title: Director	

 

 	BROWN BROTHERS HARRIMAN & CO. ,
as a Lender	

 	By:	/s/ John D. Rogers	 	
 	Name: John D. Rogers	
 	Title: Senior Vice President	

 

 	FLEET NATIONAL BANK, as an L/C Issuer	

 	By:	/s/ David A. Johanson	 	
 	Name: David A. Johanson	
 	Title: Vice President	

 
SCHEDULE 1.01
 
EXISTING LETTERS OF CREDIT

Issuer	 	L/C
Number	 	Face Amount	 	Expiry
Date	 	Beneficiary	 	
Fleet National Bank	 	1S50087912	 	$	11,946,007.00	 	6/30/2005	 	Zurich-American Insurance Company	 	
Fleet National Bank	 	1S1305680	 	$	20,195,267.00	 	12/31/2004	 	Ace Property and Casualty Insurance Company and Pacific Employers’ Insurance Company	 	
 
1

 
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES

Lender	 	Commitment	 	Applicable
Percentage	 	
Bank of America, N.A.	 	$	40,000,000	 	13.333333333	%	
JPMorgan Chase Bank	 	$	35,000,000	 	11.666666667	%	
Wachovia Bank, National Association	 	$	35,000,000	 	11.666666667	%	
KeyBank National Association	 	$	35,000,000	 	11.666666667	%	
SunTrust Bank	 	$	35,000,000	 	11.666666667	%	
HSBC Bank USA, N.A.	 	$	30,000,000	 	10.000000000	%	
LaSalle Bank National Association	 	$	25,000,000	 	8.333333333	%	
Citizens Bank of Massachusetts	 	$	25,000,000	 	8.333333333	%	
Calyon New York Branch	 	$	25,000,000	 	8.333333333	%	
Brown Brothers Harriman & Co.	 	$	15,000,000	 	5.000000000	%	
 	 	 	 	 	 	
Total	 	$	300,000,000	 	100.000000000	%	
 
A-1

 
EXHIBIT A
 
FORM OF COMMITTED LOAN NOTICE
 
Date:                    ,         
 
To:           Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among Watts Water Technologies, Inc., a Delaware corporation [, Name of Applicable Designated Borrower] (the “ Requesting Borrower ”), the [other] Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The Requesting Borrower hereby requests, on behalf of itself (select one):
 
o     A Borrowing of Committed Loans             o      A conversion or continuation of Loans
 
1.              On                                                                            (a Business Day).
 
2.              In the amount of                                                     .
 
3.              Comprised of                                                         .
[Type of Committed Loan requested]
 
4.              In the following currency:                                                     
 
5.              For Eurocurrency Rate Loans:  with an Interest Period of     months.
 
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.

 	[APPLICABLE BORROWER]	
 	 	
 	By:	 	
 	 	
 	Name:	 	
 	 	
 	Title:	 	

A-2

 
EXHIBIT B
 
FORM OF SWING LINE LOAN NOTICE
 
Date:                     ,          
 
To:           Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned hereby requests a Swing Line Loan:
 
1.              On                                                                     (a Business Day).
 
2.              In the amount of $                                             .
 
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a) of the Agreement.

 	WATTS WATER TECHNOLOGIES, INC.	
 	 	
 	By:	 	
 	 	
 	Name:	 	
 	 	
 	Title:	 	

B-1

 
EXHIBIT C
 
FORM OF NOTE

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to                                         or registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among Watts Water Technologies, Inc., a Delaware corporation, the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement.   Except as otherwise provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, a ll payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in the currency in which such Committed Loan was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
 
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of each Guaranty.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement.  Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount, currency and maturity of its Loans and payments with respect thereto.
 
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
 
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 	WATTS WATER TECHNOLOGIES, INC.	
 	 	
 	OR	
 
C-1

 

 	[APPLICABLE DESIGNATED BORROWER]	
 	 	
 	By:	 	
 	 	
 	Name:	 	
 	 	
 	Title:	 	

C-2

 
LOANS AND PAYMENTS WITH RESPECT THERETO

Date	 	Type of
Loan Made	 	Currency
and
Amount of
Loan Made	 	End of
Interest
Period	 	Amount of
Principal or
Interest
Paid This
Date	 	Outstanding
Principal
Balance
This Date	 	Notation
Made By	 	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	

C-3

 
EXHIBIT D
 
FORM OF COMPLIANCE CERTIFICATE
 
Financial Statement Date:             ,
 
To:           Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                                    of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:
 
[Use following paragraph 1 for fiscal year-end financial statements]
 
1.              Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
 
[Use following paragraph 1 for fiscal quarter-end financial statements]
 
1.              Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the above date.  Such financial statements fairly present the financial condition, results of operations and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
 
2.              The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company during the accounting period covered by the attached financial statements.
 
3.              A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all its Obligations under the Loan Documents, and
 
[select one:]
 
D-1

 
[to the best knowledge of the undersigned during such fiscal period, each Loan Party performed and observed each covenant and condition of the Loan Documents applicable to it.]
 
— or—
 
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
 
4.              The representations and warranties of (i) the Borrowers contained in Article V of the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection with the Loan Documents, are (i) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects and (ii) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects, on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) , respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.
 
5.              The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate in all material respects on and as of the date of this Certificate.
 
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                ,                .

 	WATTS WATER TECHNOLOGIES, INC.	
 	 	
 	By:	 	
 	 	
 	Name:	 	
 	 	
 	Title:	 	

D-2

 
SCHEDULE 1
to the Compliance Certificate
 
FINANCIAL STATEMENTS
 
See attached.
 
D-3

 
For the Quarter/Year ended                       (“ Statement Date ”)
 
SCHEDULE 2
to the Compliance Certificate
 
FINANCIAL COVENANT ANALYSIS
($ in 000’s)
 
I.               Section 7.13(a) – Consolidated Net Worth.

A.	Consolidated Net Worth at Statement Date:	$                    	
 	 	 	
B.	50%   of Consolidated Net Income (excluding impact of foreign currency translation adjustments) for each full fiscal quarter beginning with the fiscal quarter ending June 27, 2004 (no reduction for losses):	$                    	
 	 	 	
C.	100% of increases in Shareholders’ Equity after date of Agreement from issuance and sale of Equity Interests (including from conversion of debt securities):	$                    	
 	 	 	
D.	Minimum required Consolidated Net Worth (Lines I.B + I.C plus $350,000,000):	$                    	
 	 	 	
E.	Excess (deficiency) for covenant compliance (Line I.A — I.D):	$                    	
 
II.             Section 7.13(b) – Consolidated Fixed Charge Coverage Ratio.

A.	Consolidated Operating Cash Flow for four consecutive fiscal quarters ending on above date (“ Subject Period ”):	
 	 	
 	1.	Consolidated EBITDA for Subject Period (Schedule 3):	$                    	
 	 	 	 	
 	2.	Capital Expenditures for Subject Period:	$                    	
 	 	 	 	
 	3.	Consolidated Operating Cash Flow (Lines II.A.1 — 2):	$                    	
 	 	 	 	
B.	Consolidated Total Debt Service for Subject Period:	 	
 	 	 	
 	1.	Consolidated Total Interest Expense for Subject Period	$                    	
 	 	 	 	
 	2.	Scheduled repayments of principal during Subject Period	$                    	
 	 	 	 	
 	3.	Consolidated Total Debt Service (Lines II.B.1 + 2):	$                    	
 	 	 	 	
C.	Consolidated Fixed Charge Coverage Ratio (Line II.A.3 ¸ Line II.B.3):	                 to 1	
 	 	 	
D.	Minimum required Fixed Charge Coverage Ratio:	3.00 to 1	
 
D-4

 
III.            Section 7.13(c) – Consolidated Leverage Ratio.

A.	Consolidate  d Funded Indebtedness at Statement Date:	$                    	
 	 	 	
B.	Consolidated EBITDA for Subject Period (Schedule 3):	$                    	
 	 	 	
C.	Consolidated Lever  age Ratio (Line III.A ( Line III.B):	                 to 1	
 	 	 	
D.	Maximum permitted Consolidated Leverage Ratio	3.00 to 1	
 
D-5

 
For the Quarter/Year ended                              (“ Statement Date ”)
 
SCHEDULE 3
to the Compliance Certificate
($ in 000’s)
 
Consolidated EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)

Consolidated
EBITDA	 	Quarter
Ended	 	Quarter
Ended	 	Quarter
Ended	 	Quarter
Ended	 	Twelve
Months
Ended	 	
Consolidated Net Income	 	 	 	 	 	 	 	 	 	 	 	
+ Consolidated Total Interest Expense	 	 	 	 	 	 	 	 	 	 	 	
+ income taxes	 	 	 	 	 	 	 	 	 	 	 	
+ depreciation expense	 	 	 	 	 	 	 	 	 	 	 	
+ amortization expense	 	 	 	 	 	 	 	 	 	 	 	
+ non-recurring non-cash expenses	 	 	 	 	 	 	 	 	 	 	 	
+ Losses from Discontinued Operations	 	 	 	 	 	 	 	 	 	 	 	
- income tax credits	 	 	 	 	 	 	 	 	 	 	 	
- non-cash income	 	 	 	 	 	 	 	 	 	 	 	
= Consolidated EBITDA	 	 	 	 	 	 	 	 	 	 	 	
 
D-6

EXHIBIT E
 
ASSIGNMENT AND ASSUMPTION
 
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “ Assignor ”) and [Insert name of Assignee] (the “ Assignee ”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
 
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “ Assigned Interest ”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
 
1.              Assignor :                                                             
 
2.              Assignee :                                                             [and is an Affiliate/Approved Fund of [ identify Lender ]]
 
3.              Administrative Agent :  Bank of America, N.A., as the administrative agent under the Credit Agreement
 
4.              Credit Agreement :    Credit Agreement, dated as of September 23, 2004, among Watts Water Technologies, Inc., a Delaware corporation, the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender
 
5.              Assigned Interest :
 
E-1

 

Facility Assigned	 	Aggregate
Amount of
Commitment
for all Lenders*	 	Amount of
Commitment
Assigned*	 	Percentage Assigned
of
Commitment(1)	 	CUSIP Number	 	
Revolving Credit Commitment	 	$	 	$	%	 	 	 	 	
 
[6.             Trade Date:                             ](2)
 
Effective Date:                           , 20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
 
The terms set forth in this Assignment and Assumption are hereby agreed to:

 	ASSIGNOR	
 	[NAME OF ASSIGNOR]	

 	By:	 	 	
 	 	Title:	

 	ASSIGNEE	
 	[NAME OF ASSIGNEE]	

 	By:	 	 	
 	 	Title:	
 	 	
Consented to and Accepted:	 	
 	 	
BANK OF AMERICA, N.A., as	 	
Administrative Agent	 	

By:	 	 	 	
 	Title:	 	

*  Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
 
(1)  Set forth, to at Least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
 
(2)  To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
 
E-2

 

Consented to:	
 	
BANK OF AMERICA, N.A., as	
Swing Line Lender and L/C Issuer	
 	
By:	 	 	
Title:	
 	
[WATTS WATER TECHNOLOGIES, INC.	
 	
By:	 	 	
Title:]	
 
E-3

 
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
 
STANDARD TERMS AND CONDITIONS FOR
 
ASSIGNMENT AND ASSUMPTION
 
1.              Representations and Warranties .
 
1.1.           Assignor .  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
 
1.2.           Assignee .  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
 
2.              Payments .  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the
 
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Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
 
3.              General Provisions .  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.
 
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EXHIBIT F
 
FORM OF GUARANTY AGREEMENT
 
See attached.
 
F-1

 
EXECUTION COPY
 
GUARANTY
 
This GUARANTY (this “ Guaranty ”), dated as of September 23, 2004, is made by Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), the Subsidiaries of the Company set forth on the signature pages hereto (the “ Initial Subsidiary Guarantors ”), Watts Industries Europe B.V., a private company with limited liability organized under the laws of The Netherlands (“ Watts Europe ” and, together with the Company, the Initial Subsidiary Guarantors and any additional Subsidiaries of the Company that become parties to this Guaranty by executing a Supplement hereto in the form attached hereto as Annex I , the “ Guarantors ”), in favor of Bank of America, N.A., as Administrative Agent (in such capacity, “ Administrative Agent ”) for the Lenders pursuant to the Credit Agreement hereinafter defined.
 
PRELIMINARY STATEMENTS
 
WHEREAS, pursuant to that certain Credit Agreement dated as of the date hereof by and among the Company, certain Subsidiaries of the Company party thereto pursuant to Section 2.14 thereof (the “ Designated Borrowers ” and, collectively with the Company, the “ Borrowers ”), the Lenders, the L/C Issuer and the Administrative Agent (as from time to time amended, restated, supplemented or otherwise modified, the “ Credit Agreement ”), Lenders have agreed to make Loans and provide other financial accommodations to the Borrowers;
 
WHEREAS, the Company is the parent of each Designated Borrower, and as such will derive direct and indirect economic benefits from the making of the Loans and other financial accommodations provided to the Designated Borrowers pursuant to the Credit Agreement;
 
WHEREAS, each Designated Borrower is, with respect to the Company and each other Designated Borrower, a direct or indirect Subsidiary thereof and/or commonly owned and controlled by the Company, and as such will derive direct and indirect economic benefits from the making of the Loans and other financial accommodations provided to such other Borrowers pursuant to the Credit Agreement; and
 
WHEREAS, each Guarantor is, with respect to each Borrower, a direct or indirect Subsidiary thereof and/or commonly owned and controlled by the Company, and as such will derive direct and indirect economic benefits from the making of the Loans and other financial accommodations provided to the Borrowers pursuant to the Credit Agreement; and
 
WHEREAS, in order to induce Administrative Agent and Lenders to enter into the Credit Agreement and other Loan Documents and to induce Lenders to make the Loans and other financial accommodations as provided for in the Credit Agreement, (i) each Borrower has agreed to become jointly and severally liable for the Obligations of all of the Borrowers pursuant to an unconditional guaranty of the payment of the Obligations of each other Borrower and (ii) the Guarantors have agreed to guarantee payment of the Obligations of all of the Borrowers.
 
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NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, and to induce Lenders to provide the Loans and other financial accommodations under the Credit Agreement, it is agreed as follows:
 
1.              Guaranty.   Each Guarantor hereby, jointly and severally, absolutely and unconditionally guarantees, as a guarantee of payment and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Obligations of the all of the Borrowers to the Administrative Agent, the Lenders, the L/C Issuer and the Affiliates of the foregoing to whom Obligations are owed, and the respective successors, endorsees, transferees and assigns of each of the foregoing (each a “ Holder of Obligations ” and collectively the “ Holders of Obligations ”) (including all renewals, extensions and modifications thereof and all costs, reasonable attorneys’ fees and expenses incurred by the Holders of Obligations in connection with the collection or enforcement thereof) (collectively, the “ Guaranteed Obligations ”).  This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under this Guaranty.  Notwithstanding any provision herein contained to the contrary, each Guarantor’s liability hereunder shall be limited to an amount not to exceed as of any date of determination the greater of: (a) the net amount of all Loans and other extensions of credit (including Letters of Credit) advanced to another Loan Party under the Credit Agreement and directly or indirectly re-loaned or otherwise transferred to, or incurred for the benefit of, such Guarantor, plus interest thereon at the applicable rate specified in the Credit Agreement; or (b) the amount which could be claimed by the Administrative Agent and the Holders of Obligations from such Guarantor under this Guaranty without rendering such claim voidable or avoidable under Section 548 of the Bankruptcy Code of the United States or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
 
2.             No Setoff or Deductions; Taxes. The Guarantors hereby represent, warrant and jointly and severally agree that, as of the date of this Guaranty, their obligations under this Guaranty are not subject to any offsets or defenses against the Administrative Agent or the Holders of Obligations or any other guarantor of the Guaranteed Obligations of any kind. The Guarantors further jointly and severally agree that their obligations under this Guaranty shall not be subject to any counterclaims, offsets or defenses against the Administrative Agent or any Holder of Obligation or any other guarantor of the Guaranteed Obligations of any kind which may arise in the future.  All payments required to be made by each Guarantor hereunder shall be made to the Holders of Obligations free and clear of, and without deduction for, any and all present and future taxes.  If any Guarantor shall be required by law to deduct any taxes from or in respect of any sum payable hereunder, (a) the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2 ) the Holders of Obligations receive an amount equal to the sum they would have received had no such deductions been made, (b) such Guarantor shall make such deductions, and (c) such Guarantor shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law.  Within thirty (30) days after the date of any payment of such taxes, each applicable Guarantor shall
 
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furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. Each Guarantor shall jointly and severally indemnify and, within ten business (10) days of written demand therefor, pay each Holder of Obligations for the full amount of taxes paid by any Holder of Obligations in respect of any sum payable hereunder (including any taxes imposed on any Holder of Obligations by any jurisdiction on amounts payable under this Section 2 ) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such taxes were correctly or legally asserted.
 
3.             No Termination.   This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly paid and performed in full and any commitments of the Lenders or facilities provided by the Lenders with respect to the Guaranteed Obligations are terminated.  Payment by Guarantors shall be made to the Administrative Agent in immediately available funds in Dollars or, as applicable, such other currency in which the related Guaranteed Obligations are required to be paid pursuant to the Credit Agreement, and shall be credited and applied to the Guaranteed Obligations.
 
4.             Waiver of Notices.   Each Guarantor waives notice of the acceptance of this Guaranty and of the extension or continuation of the Guaranteed Obligations or any part thereof. Each Guarantor further waives presentment, protest, notice, dishonor or default, demand for payment and any other notices to which such Guarantor might otherwise be entitled.
 
5.             Subrogation.   No Guarantor shall exercise any right of subrogation, contribution or similar rights with respect to any payments it makes under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this Guaranty are indefeasibly paid and performed in full and any commitments of the Lenders or facilities provided by the Lenders with respect to the Guaranteed Obligations are terminated.  If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Holders of Obligations and shall promptly be paid to the Administrative Agent and shall be credited and applied to the Guaranteed Obligations, whether matured or unmatured.
 
6.             Indemnification.   To the extent that any Guarantor shall make a payment under this Guaranty (any such payment, a “ Guarantor Payment ”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount that such Guarantor would otherwise have paid if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion that such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following the indefeasible payment in full of all Guaranteed Obligations and any other amounts payable under this Guaranty and the termination of any commitments of the Lenders or facilities provided by the Lenders with respect to the Guaranteed Obligations, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.  As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the maximum amount of the claim that could then be recovered from such Guarantor under this Guaranty without.
 
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rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code of the United States, under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 6 is intended only to define the relative rights of the Guarantors and nothing set forth in this Section 6 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Guaranty.  The rights of the parties under this Section 6 shall be exercisable upon the full and indefeasible payment of all Guaranteed Obligations and any other amounts payable under this Guaranty and the termination of any commitments of the Lenders or facilities provided by the Lenders with respect to the Guaranteed Obligations.  The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.
 
7.             Waiver of Suretyship Defenses.   Each Guarantor agrees that the Holders of Obligations may, at any time and from time to time, and without notice to the Guarantor, make any agreement with any Borrower or with any other person or entity liable on any of the Guaranteed Obligations or providing collateral as security for the Guaranteed Obligations, for the extension, renewal, payment, compromise, discharge or release of the Guaranteed Obligations, any other guarantor or any collateral (in whole or in part), or for any modification or amendment of the terms thereof or of any instrument or agreement evidencing the Guaranteed Obligations or the provision of collateral, all without in any way impairing, releasing, discharging or otherwise affecting the obligations of such Guarantor under this Guaranty.  Each Guarantor waives any defense arising by reason of any disability or other defense of any Borrower or any other guarantor, or the cessation from any cause whatsoever of the liability of any Borrower, or any claim that such Guarantor’s obligations exceed or are more burdensome than those of any Borrower and waives the benefit of any statute of limitations affecting the liability of such Guarantor hereunder.  Each Guarantor waives any right to enforce any remedy which any Holder of Obligations now has or may hereafter have against any Borrower and waives any benefit of and any right to participate in any security now or hereafter held by any Holder of Obligations.
 
8.             Exhaustion of Other Remedies Not Required.   The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations.  Each Guarantor waives diligence by the Holders of Obligations and action on delinquency in respect of the Guaranteed Obligations or any part thereof, including, without limitation any provisions of law requiring any Holder of Obligations to exhaust any right or remedy or to take any action against any Borrower, any other guarantor or any other person, entity or property before enforcing this Guaranty against such Guarantor.
 
9.             Reinstatement.   Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any portion of the Guaranteed Obligations is revoked, terminated, rescinded or reduced or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of any Borrower or any other person or entity or otherwise, as if such payment had not been made and whether or not the Administrative Agent or any other Holder of Obligations is in possession of or has released this Guaranty and regardless of any prior revocation, rescission, termination or reduction.
 
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10.          Subordination.   Each Guarantor hereby subordinates the payment of all obligations and indebtedness of any Loan Party owing to such Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of any Loan Party to such Guarantor as subrogee of the Holders of Obligations or resulting from such Guarantor’s performance under this Guaranty, to the indefeasible payment in full of all Guaranteed Obligations. If the Administrative Agent, on behalf of the Holders of Obligations, so requests, any such obligation or indebtedness of any Loan Party to such Guarantor shall be enforced and performance received by such Guarantor as trustee for the Holders of Obligations and the proceeds thereof shall be paid over to the Administrative Agent on account of the Guaranteed Obligations and shall be credited and applied to the Guaranteed Obligations, whether matured or unmatured, but without reducing or affecting in any manner the liability of any Guarantor under this Guaranty.
 
11.          Stay of Acceleration.   In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy or reorganization of any Borrower or any other person or entity, or otherwise, all such amounts shall nonetheless be payable by each Guarantor immediately upon demand by the Administrative Agent.
 
12.          Expenses.   Each Guarantor shall pay on demand all out-of-pocket expenses (including reasonable attorneys’ fees and expenses and the allocated cost and disbursements of internal legal counsel) in any way relating to the enforcement or protection of the Holders’ of Obligations rights under this Guaranty, including any incurred in the preservation, protection or enforcement of any rights of the Holders of Obligations in any case commenced by or against such Guarantor under Chapter 11 of the Bankruptcy Code of the United States or any similar or successor statute.  The obligations of each Guarantor under the preceding sentence shall survive termination of this Guaranty.
 
13.          Amendments.   No provision of this Guaranty may be waived, amended, supplemented or modified, except by a written instrument executed by the Administrative Agent and each Guarantor.
 
14.          No Waiver; Enforceability.   No failure by the Holders of Obligations to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity.  The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision herein. The obligations hereunder shall not be affected, limited or impaired by any acts of any legislative body or governmental authority affecting any Borrower, including but not limited to, any restrictions on or regarding the conversion of currency or repatriation or control of funds or any total or partial expropriation of any Borrower’s property, or by any economic, political, regulatory or other events in the countries where such Borrower is located.
 
15.          Binding Effect; Assignment.   This Guaranty shall (a) bind each Guarantor and its successors and assigns; provided , that no Guarantor may assign its rights or obligations under this Guaranty without the prior written consent of each Lender (and any attempted assignment
 
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without such consent shall be void) and (b) inure to the benefit of the Administrative Agent and the Holders of Obligations and their respective successors and assigns and any Holder of Obligations may, subject to the terms and conditions of the Credit Agreement, without notice to the Guarantor and without affecting the Guarantor’s obligations hereunder, assign or sell participations in the Guaranteed Obligations and this Guaranty, in whole or in part.  Each Guarantor agrees that the Administrative Agent or any Holder of Obligations may, subject to the terms and conditions of the Credit Agreement, disclose to any prospective purchaser of all or part of the Guaranteed Obligations any and all information in such Person’s possession concerning such Guarantor, this Guaranty and any security for this Guaranty.
 
16.          Condition of the Borrowers.   Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from each Borrower such information concerning the financial condition, business and operations of such Borrower as such Guarantor requires, and that neither the Administrative Agent nor any Holder of Obligations has any duty, and such Guarantor is not relying on any Holder of Obligations at any time, to disclose to such Guarantor any information relating to the business, operations or financial condition of any Borrower.
 
17.          Setoff.   If and to the extent any payment is not made when due hereunder, each Holder of Obligations and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Holder of Obligation or any such Affiliate to or for the credit or the account of any Guarantor against any and all of the obligations of such Guarantor now or hereafter existing under this Guaranty or any other Loan Document to such Holder of Obligations, irrespective of whether or not such Holder of Obligations shall have made any demand under this Guaranty or any other Loan Document and although such obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of such Holder of Obligations different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Holder of Obligations and their respective Affiliates under this Section 17 are in addition to other rights and remedies (including other rights of setoff) that such Holder of Obligations or its respective Affiliates may have.  Each Holder of Obligations agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided , that the failure to give such notice shall not affect the validity of such setoff and application.
 
18.          Representations and Warranties.   Each Guarantor represents and warrants that:
 
(a)           Such Guarantor is duly organized and formed, validly existing and in good standing (to the extent such concept is applicable to such entity) under the Laws of the jurisdiction of its incorporation or organization;
 
(b)           Such Guarantor has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under this Guaranty; and
 
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(c)           The making and performance of this Guaranty by such Guarantor have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Guarantor’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (x) any Contractual Obligation to which such Guarantor is a party or affecting such Guarantor or the properties of such Guarantor or any of its Subsidiaries or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Guarantor or its property is subject; or (iii) violate any Law.
 
19.          Foreign Currency.   If any claim arising under or related to this Guaranty is reduced to judgment denominated in a currency (the “ Judgment Currency ”) other than the  currencies in which the applicable Guaranteed Obligations are denominated (collectively the “ Obligations Currency ”), the judgment shall be for the equivalent in the Judgment Currency of the amount of the claim denominated in the Obligations Currency included in the judgment, determined as of the date of judgment.  The equivalent of any Obligations Currency amount in any Judgment Currency shall be calculated at the spot rate for the purchase of the Obligations Currency with the Judgment Currency quoted by the Administrative Agent in the place of the Administrative Agent’s choice at or about 8:00 a.m. on the date for determination specified above. Each Guarantor shall indemnify the Holders of Obligations and hold the Holders of Obligations harmless from and against all loss or damage resulting from any change in exchange rates between the date any claim is reduced to judgment and the date of payment thereof by any Guarantor. If the Administrative Agent so notifies the Guarantors in writing, at the Administrative Agent’s sole and absolute discretion, payments under this Guaranty shall be the Dollar Equivalent of the Guaranteed Obligations or any portion thereof, determined as of the date payment is made.
 
20.          Further Assurances.   Each Guarantor agrees, upon the written request of the Administrative Agent, to execute and deliver to the Administrative Agent, from time to time, any additional instruments or documents reasonably considered necessary by Administrative Agent to cause this Guaranty to be, become or remain valid and effective in accordance with its terms.
 
21.          Notices.   Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other party, or whenever any of the parties desires to give and serve upon any other party any communication with respect to this Guaranty, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be given in the manner, and deemed received, as provided for in the Credit Agreement, with respect to the Administrative Agent at its notice address therein and with respect to any Guarantor at the address set forth for the Company in the Credit Agreement or such other address or telecopy number as such party may hereafter specify for such purpose by notice to the Administrative Agent as provided for in the Credit Agreement.
 
22.          GOVERNING LAW.   THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
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23.          SUBMISSION TO JURISDICTION.   EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY HOLDER OF OBLIGATIONS MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
24.          WAIVER OF VENUE; SERVICE OF PROCESS.   EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 23 .  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 21 .  NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
 
25.          WAIVER OF JURY TRIAL .   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
 
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BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 25 .
 
26.          Headings.   Section headings in this Guaranty are for convenience of reference only and shall not govern the interpretation of any provision of this Guaranty.
 
27.          Additional Guarantors.   Each Person that becomes a Designated Borrower or Material Subsidiary of the Company after the Closing Date is required to become, and the Company will promptly cause such Subsidiary to become, in accordance with the Credit Agreement, a Guarantor and be made a party to this Guaranty pursuant to this Section by the execution and delivery by the Administrative Agent and such Subsidiary of a supplement in the form of Annex I hereto and such additional documentation and legal opinions as the Administrative Agent may reasonably request.  The execution and delivery of any such instrument shall not require the consent of any Guarantor hereunder.  The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Guaranty.

[Remainder of page intentionally left blank.]
 
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty as of the date first above written.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	
 	Name:	
 	Title:	

 	WATTS INDUSTRIES EUROPE B.V.	

 	By:	 	
 	Name:	
 	Title:	

Signature Page to
Guaranty

 

 	INITIAL SUBSIDIARY GUARANTORS:	
 	 	
 	WATTS REGULATOR CO.	

 	By:	 	
 	Name:	
 	Title:	
 	 	
 	ANDERSON-BARROWS METALS
CORPORATION	

 	By:	 	
 	Name:	
 	Title:	
 	 	
 	WEBSTER VALVE, INC.	

 	By:	 	
 	Name:	
 	Title:	
 	 	
 	HUNTER INNOVATIONS, INC.	

 	By:	 	
 	Name:	
 	Title:	
 	 	
 	WATTS DISTRIBUTION COMPANY, INC.	

 	By:	 	
 	Name:	
 	Title:	
 	 	
 	WATTS RADIANT, INC.	

 	By:	 	
 	Name:	
 	Title:	

 

 	WATTS PREMIER, INC.	

 	By:	 	
 	Name:	
 	Title:	

 
ANNEX I TO GUARANTY
 
Reference is hereby made to the Guaranty (as from time to time amended, restated, supplemented or otherwise modified, the “ Guaranty ”), dated as of September [     ], 2004, made by Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), certain Domestic Subsidiaries of the Company (collectively, the “ Initial Subsidiary Guarantors ”), Watts Industries Europe B.V., a private company with limited liability organized under the laws of The Netherlands (“ Watts Europe ” and, together with the Company, the Initial Subsidiary Guarantors and any additional Subsidiaries of the Company that become parties to the Guaranty by executing a Supplement thereto in the form attached thereto as Annex I , the “ Guarantors ”), in favor of Bank of America, N.A., as Administrative Agent (in such capacity, the “ Administrative Agent ”).  Each capitalized term used herein and not defined herein shall have the meaning given to it in the Guaranty.
 
By its execution below, the undersigned, [ NAME OF NEW GUARANTOR ], a [                            ] , agrees to become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party thereto.  By its execution below, the undersigned represents and warrants that all of the representations and warranties contained in Section 18 of the Guaranty are true and correct in all respects as of the date hereof.
 
IN WITNESS WHEREOF,[ NAME OF NEW GUARANTOR], a  [                            ]  has executed and delivered this Annex I counterpart to the Guaranty as of this                  day of                 ,         .

 	[ NAME OF NEW GUARANTOR ]	

 	By:	 	
 	Name:	
 	Title:	

10

 
 
EXHIBIT G
 
FORM OF DESIGNATED BORROWER
REQUEST AND ASSUMPTION AGREEMENT
 
Date:                 ,          
 
To:           Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to Section 2.14 of that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, and reference is made thereto for full particulars of the matters described therein.  All capitalized terms used in this Designated Borrower Request and Assumption Agreement and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
 
Each of                                             (the “ Designated Borrower ”) and the Company hereby confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated Borrower is a Subsidiary of the Company.
 
The documents required to be delivered to the Administrative Agent under Section 2.14 of the Credit Agreement will be furnished to the Administrative Agent in accordance with the requirements of the Credit Agreement.
 
The parties hereto hereby confirm that with effect from the date hereof, the Designated Borrower shall have obligations, duties and liabilities toward each of the other parties to the Credit Agreement identical to those which the Designated Borrower would have had if the Designated Borrower had been an original party to the Credit Agreement as a Borrower.  The Designated Borrower confirms its acceptance of, and consents to, all representations and warranties, covenants, and other terms and provisions of the Credit Agreement.
 
The parties hereto hereby request that the Designated Borrower be entitled to receive Loans under the Credit Agreement, and understand, acknowledge and agree that neither the Designated Borrower nor the Company on its behalf shall have any right to request any Loans for its account unless and until the date five Business Days after the effective date designated by the Administrative Agent in a Designated Borrower Notice delivered to the Company and the Lenders pursuant to Section 2.14 of the Credit Agreement.
 
This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document under the Credit Agreement.
 
G-1

 
THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
IN WITNESS WHEREOF , the parties hereto have caused this Designated Borrower Request and Assumption Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

 	[DESIGNATED BORROWER]	

 	By:	 	 	
 	Title:	 	 	
 	 	
 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	Title:	 	 	

G-2

 
EXHIBIT H
 
FORM OF DESIGNATED BORROWER NOTICE
 
Date:                 ,        
 
To:           [Company]
 
The Lenders party to the Credit Agreement referred to below
 
Ladies and Gentlemen:
 
This Designated Borrower Notice is made and delivered pursuant to Section 2.14 of that certain Credit Agreement, dated as of September 23, 2004 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among Watts Water Technologies, Inc., a Delaware corporation (the “ Company ”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, and reference is made thereto for full particulars of the matters described therein.  All capitalized terms used in this Designated Borrower Notice and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
 
The Administrative Agent hereby notifies Company and the Lenders that effective as of the date hereof [                                             ] shall be a Designated Borrower and may receive Loans for its account on the terms and conditions set forth in the Credit Agreement.
 
This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.

 	BANK OF AMERICA, N.A.,	
 	as Administrative Agent	

 	By:	 	 	
 	Title:	 	 	

H-1

 
EXHIBIT I-1
 
FORM OF OPINION OF U.S. COUNSEL
 
I-1-1

 
EXHIBIT I-2
 
FORM OF OPINION OF DUTCH COUNSEL
 
1

Exhibit 10.2
 
INCENTIVE STOCK OPTION AGREEMENT
 
UNDER THE WATTS WATER TECHNOLOGIES, INC.
2004 STOCK INCENTIVE PLAN

Name of Optionee:                                       	
No. of Option Shares:                                       	
Option Exercise Price per Share:                                                              	
 	[FMV (110% of FMV if a 10% owner)]	
Grant Date:                                       	
Expiration Date:                                       	
 	[up to 10 years (5 if a 10% owner)]	

Pursuant to the Watts Water Technologies, Inc. 2004 Stock Incentive Plan (the “Plan”) as amended through the date hereof, Watts Water Technologies, Inc. (the “Company”) hereby grants to the Optionee named above an option (the “Stock Option”) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Class A Common Stock, par value $.10 per share (the “Stock”) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan.
 
1.              Exercisability Schedule .  No portion of this Stock Option may be exercised until such portion shall have become exercisable.  Except as set forth below, and subject to the discretion of the Administrator (as defined in Section 2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated:

Exercisability Date	 	Number of
Option Shares Exercisable*	 	Cumulative
Percentage Exercisable	 	
                 	 	                           (25	)%	                           (25	)%	
                 	 	                           (25	)%	                           (50	)%	
                 	 	                           (25	)%	                           (75	)%	
                 	 	                           (25	)%	                           (100	)%	

* Max. of $100,000 per yr.
 
Once exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date, unless the Stock Option is terminated sooner as provided herein.

 
2.              Manner of Exercise .
 
(a)            The Optionee may exercise this Stock Option only in the following manner:  from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice to the Administrator of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice.  This notice shall specify the number of Option Shares to be purchased.
 
Payment of the purchase price for the Option Shares may be made by one or more of the following methods:  (i) in cash, by certified or bank check or other instrument acceptable to the Administrator; (ii) through the delivery (or attestation to the ownership) of shares of Stock that have been purchased by the Optionee on the open market or that have been beneficially owned by the Optionee for at least six months and are not then subject to any restrictions under any Company plan; (iii) by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the option purchase price, provided that in the event the Optionee chooses to pay the option purchase price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Administrator shall prescribe as a condition of such payment procedure; or (iv) a combination of (i), (ii) and (iii) above.  Payment instruments will be received subject to collection.
 
The delivery of certificates representing the Option Shares will be contingent upon the Company’s receipt from the Optionee of full payment for the Option Shares, as set forth above and any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations.  In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the shares attested to.
 
(b)            Certificates for the shares of Stock purchased upon exercise of this Stock Option shall be issued and delivered to the Optionee upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in connection with such issuance and with the requirements hereof and of the Plan.  The determination of the Administrator as to such compliance shall be final and binding on the Optionee.  The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company shall have issued and delivered the shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of record on the books of the Company.  Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock.
 
(c)            The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time.
 
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(d)            Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date hereof.
 
3.              Termination of Employment .  If the Optionee’s employment by the Company or a Subsidiary (as defined in the Plan) is terminated, the period within which to exercise the Stock Option may be subject to earlier termination as set forth below.
 
(a)            Termination Due to Death .  If the Optionee’s employment terminates by reason of death, any Stock Option held by the Optionee shall become fully exercisable and may thereafter be exercised by the Optionee’s legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier.
 
(b)            Termination Due to Disability .  If the Optionee’s employment terminates by reason of disability (as determined by the Administrator), any Stock Option held by the Optionee shall become fully exercisable and may thereafter be exercised by the Optionee for a period of 12 months from the date of termination or until the Expiration Date, if earlier.
 
(c)            Termination for Cause .  If the Optionee’s employment terminates for Cause, any Stock Option held by the Optionee shall terminate immediately and be of no further force and effect.  For purposes hereof, “Cause” shall mean a vote by the Board resolving that the Optionee shall be dismissed as a result of (i) any material breach by the Optionee of any agreement between the Optionee and the Company; (ii) the indictment of the Optionee in connection with a felony or a crime involving moral turpitude; or (iii) any material misconduct or willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionee’s duties to the Company.
 
(d)            Other Termination .  If the Optionee’s employment terminates for any reason other than death, disability, or Cause, and unless otherwise determined by the Administrator, any Stock Option held by the Optionee may be exercised, to the extent exercisable on the date of termination, for a period of six months from the date of termination or until the Expiration Date, if earlier.  Any Stock Option that is not exercisable upon the Optionee’s termination of employment shall terminate immediately and be of no further force or effect.
 
The Administrator’s determination of the reason for termination of the Optionee’s employment shall be conclusive and binding on the Optionee and his or her representatives or legatees.
 
4.              Incorporation of Plan .  Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan.  Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
 
5.              Limitations on Transferability .  This Agreement is personal to the Optionee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.  This Stock Option is exercisable, during the
 
3

 
Optionee’s lifetime, only by the Optionee, and thereafter, only by the Optionee’s legal representative or legatee.
 
6.              Status of the Stock Option .  This Stock Option is intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) if it is exercised while the Optionee is an employee of the Company or within three months following termination of employment for any reason other than death, disability or Cause, but the Company does not represent or warrant that this Stock Option qualifies as such.  The Optionee should consult with his or her own tax advisors regarding the tax effects of this Stock Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code, including, but not limited to, holding period requirements.  If the Optionee intends to dispose or does dispose (whether by sale, gift, transfer or otherwise) of any Option Shares within the one-year period beginning on the date after the transfer of such shares to him or her, or within the two-year period beginning on the day after the grant of this Stock Option, he or she will notify the Company within 30 days after such disposition.
 
7.              Tax Withholding .  The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event.  The Optionee may elect to have the minimum required tax withholding obligation satisfied, in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
 
8.              Miscellaneous .
 
(a)            Notice hereunder shall be given to the Company at its principal place of business, and shall be given to the Optionee at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
 
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(b)            This Stock Option does not confer upon the Optionee any rights with respect to continuance of employment by the Company or any Subsidiary.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	 	Title:	
 
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.

Dated:	 	 	 	 	
 	Optionee’s Signature	

 	Optionee’s name and address:	

 	 	

 	 	 	

5

Exhibit 10.3
 
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR COMPANY EMPLOYEES, NON-EMPLOYEE DIRECTORS
AND CONSULTANTS
 
UNDER THE WATTS WATER TECHNOLOGIES, INC.
2004 STOCK INCENTIVE PLAN

Name of Optionee:                                                                   	
No. of Option Shares:                                                             	
Option Exercise Price per Share:                                         	
 	[min. 50% of FMV]	
Grant Date:                                                  	
Expiration Date:                                                  	
 	[up to 10 years]	

Pursuant to the Watts Water Technologies, Inc. 2004 Stock Incentive Plan (the “Plan”) as amended through the date hereof, Watts Water Technologies, Inc. (the “Company”) hereby grants to the Optionee named above an option (the “Stock Option”) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Class A Common Stock, par value $.10 per share (the “Stock”) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan.
 
1.             Exercisability Schedule .  No portion of this Stock Option may be exercised until such portion shall have become exercisable.  Except as set forth below, and subject to the discretion of the Administrator (as defined in Section 2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated:

Exercisability Date	 	Number of
Option Shares Exercisable	 	Cumulative
Percentage Exercisable	 	
              	 	              (25	)%	              (25	)%	
              	 	              (25	)%	              (50	)%	
              	 	              (25	)%	              (75	)%	
              	 	              (25	)%	              (100	)%	
 
Once exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date, unless the Stock Option is terminated sooner as provided herein.

 
2.             Manner of Exercise .
 
(a)           The Optionee may exercise this Stock Option only in the following manner:  from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice to the Administrator of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice.  This notice shall specify the number of Option Shares to be purchased.
 
Payment of the purchase price for the Option Shares may be made by one or more of the following methods:  (i) in cash, by certified or bank check or other instrument acceptable to the Administrator; (ii) through the delivery (or attestation to the ownership) of shares of Stock that have been purchased by the Optionee on the open market or that have been beneficially owned by the Optionee for at least six months and are not then subject to any restrictions under any Company plan; (iii) by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the option purchase price, provided that in the event the Optionee chooses to pay the option purchase price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Administrator shall prescribe as a condition of such payment procedure; or (iv) a combination of (i), (ii) and (iii) above.  Payment instruments will be received subject to collection.
 
The delivery of certificates representing the Option Shares will be contingent upon the Company’s receipt from the Optionee of full payment for the Option Shares, as set forth above and any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations.  In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to.
 
(b)           Certificates for shares of Stock purchased upon exercise of this Stock Option shall be issued and delivered to the Optionee upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in connection with such issuance and with the requirements hereof and of the Plan.  The determination of the Administrator as to such compliance shall be final and binding on the Optionee.  The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company shall have issued and delivered the shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of record on the books of the Company.  Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock.
 
(c)           The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time.
 
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(d)           Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date hereof.
 
3.             Termination of Employment or Service .  If the Optionee’s employment by or service with the Company or a Subsidiary (as defined in the Plan) is terminated, the period within which to exercise the Stock Option may be subject to earlier termination as set forth below.
 
(a)           Termination Due to Death .  If the Optionee’s employment or service terminates by reason of death, any Stock Option held by the Optionee shall become fully exercisable and may thereafter be exercised by the Optionee’s legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier.
 
(b)           Termination Due to Disability .  If the Optionee’s employment or service terminates by reason of disability (as determined by the Administrator), any Stock Option held by the Optionee shall become fully exercisable and may thereafter be exercised by the Optionee for a period of 12 months from the date of termination or until the Expiration Date, if earlier.
 
(c)           Termination for Cause .  If the Optionee’s employment or service terminates for Cause, any Stock Option held by the Optionee shall terminate immediately and be of no further force and effect.  For purposes hereof, “Cause” shall mean a vote by the Board resolving that the Optionee shall be dismissed as a result of (i) any material breach by the Optionee of any agreement between the Optionee and the Company; (ii) the indictment of the Optionee in connection with a felony or a crime involving moral turpitude; or (iii) any material misconduct or willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionee’s duties to the Company.
 
(d)           Other Termination .  If the Optionee’s employment or service terminates for any reason other than death, disability or Cause, and unless otherwise determined by the Administrator, any Stock Option held by the Optionee may be exercised, to the extent exercisable on the date of termination, for a period of six months from the date of termination or until the Expiration Date, if earlier.  Any Stock Option that is not exercisable upon the Optionee’s termination of employment or service shall terminate immediately and be of no further force or effect.
 
The Administrator’s determination of the reason for termination of the Optionee’s employment or service shall be conclusive and binding on the Optionee and his or her representatives or legatees.
 
4.             Incorporation of Plan .  Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in  Section 2(b) of the Plan.  Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
 
5.             Limitations on Transferability .  This Agreement is personal to the Optionee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.  This Stock Option is exercisable, during the
 
3

 
Optionee’s lifetime, only by the Optionee, and thereafter, only by the Optionee’s legal representative or legatee.
 
6.             Tax Withholding .  The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event.  The Optionee may elect to have the minimum required tax withholding obligation satisfied, in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
 
7.             Miscellaneous .
 
(a)           Notice hereunder shall be given to the Company at its principal place of business, and shall be given to the Optionee at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
 
(b)           This Stock Option does not confer upon the Optionee any rights with respect to continuance of employment by or service with the Company or any Subsidiary.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	 	Title:	

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.	

Dated:	 	 	 	 	
 	Optionee’s Signature	

 	Optionee’s name and address:	

 	 	 	

 	 	 	

						
 
4

Exhibit 10.4
 
RESTRICTED STOCK AWARD AGREEMENT
FOR COMPANY EMPLOYEES
 
UNDER THE WATTS WATER TECHNOLOGIES, INC.
2004 STOCK INCENTIVE PLAN
 
Name of Grantee:                                 
No. of Shares:                                       
Grant Date:                                               
 
Pursuant to the Watts Water Technologies, Inc. 2004 Stock Incentive Plan (the “Plan”) as amended through the date hereof, Watts Water Technologies, Inc. (the “Company”) hereby grants a Restricted Stock Award (an “Award”) to the Grantee named above.  The Grantee shall receive the number of shares of Class A Common Stock, par value $.10 per share (the “Stock”) of the Company specified above, subject to the restrictions and conditions set forth herein and in the Plan.
 
1.             Acceptance of Award .  The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement.  Upon acceptance of this Award by the Grantee, (i) the shares of Restricted Stock so accepted shall be issued by the Company and held by the Company’s transfer agent in book entry form in a restricted account until such Restricted Stock is vested as provided in Paragraph 3 below, (ii) the Grantee shall deliver to the Company a stock power endorsed in blank, and (iii) the Grantee’s name shall be entered as the stockholder of record on the books of the Company.  Thereupon, the Grantee shall have all the rights of a shareholder with respect to such shares, including voting and dividend rights, subject, however, to the restrictions and conditions specified in Paragraph 2 below.
 
2.             Restrictions and Conditions .
 
(a)           As set forth in Paragraph 1, the book entries representing the shares of Restricted Stock granted herein shall bear an appropriate legend, as determined by the Administrator in its sole discretion, to the effect that such shares are subject to restrictions as set forth herein and in the Plan.
 
(b)           Shares of Restricted Stock granted herein may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of by the Grantee prior to vesting.
 
(c)           If the Grantee’s employment with the Company and its Subsidiaries is voluntarily or involuntarily terminated for any reason (other than death or disability) prior to vesting of shares of Restricted Stock granted herein, the unvested shares of Restricted Stock shall be immediately forfeited upon termination of employment.
 
3.             Vesting of Restricted Stock .  The restrictions and conditions in Paragraph 2 of this Agreement shall lapse on the Vesting Date or Dates specified in the following schedule.  If a series of Vesting Dates is specified, then the restrictions and conditions in Paragraph 2 shall

 
lapse only with respect to the number of shares of Restricted Stock specified as vested on such date.

Vesting Date	 	Number of
Shares of Restricted Stock Vested	 	Cumulative Shares of
Restricted Stock Vested	 	
                      	 	                      (33 1/3	)%	                      (33 1/3	)%	
                      	 	                      (33 1/3	)%	                      (66 2/3	)%	
                      	 	                      (33 1/3	)%	                      (100	)%	
 
Subsequent to such Vesting Date or Dates, the shares of Stock on which all restrictions and conditions have lapsed shall no longer be deemed Restricted Stock.  Notwithstanding the foregoing, if the Grantee’s employment is terminated by reason of death or disability (as determined by the Administrator) prior to the vesting of shares of Restricted Stock granted herein, the unvested shares of Restricted Stock held by the Grantee shall become fully vested.  The Administrator may at any time accelerate the vesting schedule specified in this Paragraph 3.
 
4.             Dividends .  Dividends on Shares of Restricted Stock shall be paid currently to the Grantee.
 
5.             Incorporation of Plan .  Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan.  Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
 
6.             Limitations on Transferability .  This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
 
7.             Tax Withholding .  The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event.  The Grantee may elect to have the required minimum tax withholding obligation satisfied, in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
 
8.             Miscellaneous .
 
(a)           Notice hereunder shall be given to the Company at its principal place of business, and shall be given to the Grantee at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
 
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(b)           This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	 	Title:	

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.

Dated:	 	 	 	 	
 	Grantee’s Signature	

 	Grantee’s name and address:	

 	 	 	
 
3

 
IRREVOCABLE STOCK POWER
 
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Watts Water Technologies, Inc.,                              shares of the Class A Common Stock, $0.10 par value, of Watts Water Technologies, Inc., a Delaware corporation (the “Company”),  standing in the name of the undersigned on the books of said Company, and does hereby irrevocably constitute and appoint                                as his/her Attorney-in-Fact to transfer the said stock on the books of the Company with full power of substitution in the premises.
 
IN WITNESS WHEREOF, the undersigned has caused this power to be executed as of this           day of                           ,          .

 	 	 	
 	Name:	
 	Address:	

 	 	 	
 
4

Exhibit 10.5
 
RESTRICTED STOCK AWARD AGREEMENT
FOR COMPANY EMPLOYEES
 
UNDER THE WATTS WATER TECHNOLOGIES, INC.
2004 STOCK INCENTIVE PLAN
 
Name of Grantee:                                    
No. of Shares:                                          
Grant Date:                                                   
 
Pursuant to the Watts Water Technologies, Inc. 2004 Stock Incentive Plan (the “Plan”) as amended through the date hereof, Watts Water Technologies, Inc. (the “Company”) hereby grants a Restricted Stock Award (an “Award”) to the Grantee named above.  The Grantee shall receive the number of shares of Class A Common Stock, par value $.10 per share (the “Stock”) of the Company specified above, subject to the restrictions and conditions set forth herein and in the Plan.
 
1.             Acceptance of Award .  The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement.  Upon acceptance of this Award by the Grantee, (i) the shares of Restricted Stock so accepted shall be issued by the Company and held by the Company’s transfer agent in book entry form in a restricted account until such Restricted Stock is vested as provided in Paragraph 3 below, (ii) the Grantee shall deliver to the Company a stock power endorsed in blank, and (iii) the Grantee’s name shall be entered as the stockholder of record on the books of the Company.  Thereupon, the Grantee shall have all the rights of a shareholder with respect to such shares, including voting and dividend rights, subject, however, to the restrictions and conditions specified in Paragraph 2 below.
 
2.             Restrictions and Conditions .
 
(a)           As set forth in Paragraph 1, the book entries representing the shares of Restricted Stock granted herein shall bear an appropriate legend, as determined by the Administrator in its sole discretion, to the effect that such shares are subject to restrictions as set forth herein and in the Plan.
 
(b)           Shares of Restricted Stock granted herein may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of by the Grantee prior to vesting.
 
(c)           If the Grantee’s employment with the Company and its Subsidiaries is voluntarily or involuntarily terminated for any reason (other than death or disability) prior to vesting of shares of Restricted Stock granted herein, the unvested shares of Restricted Stock shall be immediately forfeited upon termination of employment.
 
3.             Vesting of Restricted Stock .  The restrictions and conditions in Paragraph 2 of this Agreement shall lapse on                               [third anniversary of Grant Date] (the “Vesting Date”).  Subsequent to such Vesting Date, the shares of Stock shall no longer be deemed

 
Restricted Stock.  Notwithstanding the foregoing, if the Grantee’s employment is terminated by reason of death or disability (as determined by the Administrator) prior to the vesting of shares of Restricted Stock granted herein, the unvested shares of Restricted Stock held by the Grantee shall become fully vested.  The Administrator may at any time accelerate the vesting of the Stock.
 
4.             Dividends .  Dividends on Shares of Restricted Stock shall be paid currently to the Grantee.
 
5.             Incorporation of Plan .  Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan.  Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
 
6.             Limitations on Transferability .  This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
 
7.             Tax Withholding .  The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event.  The Grantee may elect to have the required minimum tax withholding obligation satisfied, in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
 
8.             Miscellaneous .
 
(a)           Notice hereunder shall be given to the Company at its principal place of business, and shall be given to the Grantee at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
 
(b)           This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	 	Title:	
 
2

 
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.

Dated:	 	 	 	 	
 	Grantee’s Signature	

 	Grantee’s name and address:	

 	 	 	

3

 
IRREVOCABLE STOCK POWER
 
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Watts Water Technologies, Inc.,                           shares of the Class A Common Stock, $0.10 par value, of Watts Water Technologies, Inc., a Delaware corporation (the “Company”),  standing in the name of the undersigned on the books of said Company, and does hereby irrevocably constitute and appoint                                as his/her Attorney-in-Fact to transfer the said stock on the books of the Company with full power of substitution in the premises.
 
IN WITNESS WHEREOF, the undersigned has caused this power to be executed as of this          day of                   ,            .

 	 	 	
 	Name:	
 	Address:	

 	 	 	
 
4

Exhibit 10.6
 
RESTRICTED STOCK AWARD AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
 
UNDER THE WATTS WATER TECHNOLOGIES, INC.
2004 STOCK INCENTIVE PLAN
 
Name of Grantee:                                  
No. of Shares:                                        
Grant Date:                                                
 
Pursuant to the Watts Water Technologies, Inc. 2004 Stock Incentive Plan (the “Plan”) as amended through the date hereof, Watts Water Technologies, Inc. (the “Company”) hereby grants a Restricted Stock Award (an “Award”) to the Grantee named above who is a Director of the Company but is not an officer or employee of the Company.  The Grantee shall receive the number of shares of Class A Common Stock, par value $.10 per share (the “Stock”) of the Company specified above, subject to the restrictions and conditions set forth herein and in the Plan.
 
1.             Acceptance of Award .  The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement.  Upon acceptance of this Award by the Grantee, (i) the shares of Restricted Stock so accepted shall be issued by the Company and held by the Company’s transfer agent in book entry form in a restricted account until such Restricted Stock is vested as provided in Paragraph 3 below, (ii) the Grantee shall deliver to the Company a stock power endorsed in blank, and (iii) the Grantee’s name shall be entered as the stockholder of record on the books of the Company.  Thereupon, the Grantee shall have all the rights of a shareholder with respect to such shares, including voting and dividend rights, subject, however, to the restrictions and conditions specified in Paragraph 2 below.
 
2.             Restrictions and Conditions .
 
(a)           As set forth in Paragraph 1, the book entries representing the shares of Restricted Stock granted herein shall bear an appropriate legend, as determined by the Administrator in its sole discretion, to the effect that such shares are subject to restrictions as set forth herein and in the Plan.
 
(b)           Shares of Restricted Stock granted herein may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of by the Grantee prior to vesting.
 
(c)           If the Grantee’s service as a director of the Company is terminated for any reason (other than death or disability) prior to vesting of shares of Restricted Stock granted herein, the shares of Restricted Stock that have not vested shall be immediately forfeited upon termination of service as a director.
 
3.             Vesting of Restricted Stock .  The restrictions and conditions in Paragraph 2 of this Agreement shall lapse on the Vesting Date or Dates specified in the following schedule.  If a

 
series of Vesting Dates is specified, then the restrictions and conditions in Paragraph 2 shall lapse only with respect to the number of shares of Restricted Stock specified as vested on such date.

Vesting Date	 	Number of
Shares of Restricted Stock Vested	 	Cumulative Shares of
Restricted Stock Vested	 	
                  	 	                  (33 1/3	)%	                  (33 1/3	)%	
                  	 	                  (33 1/3	)%	                  (66 2/3	)%	
                  	 	                  (33 1/3	)%	                  (100	)%	
 
Subsequent to such Vesting Date or Dates, the shares of Stock on which all restrictions and conditions have lapsed shall no longer be deemed Restricted Stock.  Notwithstanding the foregoing, if the Grantee’s service as a director is terminated by reason of death or disability (as determined by the Administrator) prior to the vesting of shares of Restricted Stock granted herein, the unvested shares of Restricted Stock held by the Grantee shall become fully vested.  The Administrator may at any time accelerate the vesting schedule specified in this Paragraph 3.
 
4.             Dividends .  Dividends on Shares of Restricted Stock shall be paid currently to the Grantee.
 
5.             Incorporation of Plan .  Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan.  Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
 
6.             Limitations on Transferability .  This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
 
7.             Miscellaneous .
 
(a)           Notice hereunder shall be given to the Company at its principal place of business, and shall be given to the Grantee at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
 
(b)           This Agreement does not confer upon the Grantee any rights with respect to continuation of service as a director of the Company or any Subsidiary.

 	WATTS WATER TECHNOLOGIES, INC.	

 	By:	 	 	
 	 	Title:	
 
2

 
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.

Dated:	 	 	 	 	
 	Grantee’s Signature	

 	Grantee’s name and address:	

 	 	 	

 	 	 	
 
3

 
IRREVOCABLE STOCK POWER
 
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Watts Water Technologies, Inc.,                            shares of the Class A Common Stock, $0.10 par value, of Watts Water Technologies, Inc., a Delaware corporation (the “Company”),  standing in the name of the undersigned on the books of said Company, and does hereby irrevocably constitute and appoint                           as his/her Attorney-in-Fact to transfer the said stock on the books of the Company with full power of substitution in the premises.
 
IN WITNESS WHEREOF, the undersigned has caused this power to be executed as of this         day of                    ,          .

 	 	 	
 	Name:	
 	Address:	

 	 	 	
 
4

Exhibit 31.1
 
WATTS WATER TECHNOLOGIES, INC.
CERTIFICATION PURSUANT TO
SECTION 302 OF
 THE SARBANES-OXLEY ACT OF 2002
 
CERTIFICATIONS
 
I, Patrick S. O’Keefe, certify that:
 
1.               I have reviewed this quarterly report on Form 10-Q of Watts Water Technologies, Inc.;
 
2.               Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.               Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.               The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
 
(a)                           Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
(b)                          Omitted
 
(c)                           Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
(d)                       Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.                The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
(a)                        All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
(b)                       Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 5, 2004	/s/Patrick S. O’Keefe	 	
 	Patrick S. O’Keefe	
 	Chief Executive Officer	

 
Exhibit 31.2
 
WATTS WATER TECHNOLOGIES, INC.
CERTIFICATION PURSUANT TO
SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
 
CERTIFICATIONS
 
I, William C. McCartney, certify that:
 
1.                I have reviewed this quarterly report on Form 10-Q of Watts Water Technologies, Inc.;
 
2.                Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.                Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.                The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
 
(a)                           Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
(b)                          Omitted
 
(c)                           Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
(d)                          Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.                The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
(a)                           All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
(b)                          Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 5, 2004	/s/ William C. McCartney	 	
 	William C. McCartney	
 	Chief Financial Officer	

 
Exhibit 32.1
 
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
 
The undersigned officer of Watts Water Technologies, Inc. (the “Company”) hereby certifies that the Company’s quarterly report on Form 10-Q to which this certification is attached (the “Report”), as filed with the Securities and Exchange Commission on the date hereof, fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  This certification is provided solely pursuant to 18 U.S.C. Section 1350 and Item 601(b)(32) of Regulation S-K (“Item 601(b)(32)”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act.  In accordance with clause (ii) of Item 601(b)(32), this certification (A) shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and (B) shall not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.

Date: November 5, 2004	 	
 	/s/ Patrick S. O’Keefe	 	
 	Patrick S. O’Keefe	
 	Chief Executive Officer	

 
Exhibit 32.2
 
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
 
The undersigned officer of Watts Water Technologies, Inc. (the “Company”) hereby certifies that the Company’s quarterly report on Form 10-Q to which this certification is attached (the “Report”), as filed with the Securities and Exchange Commission on the date hereof, fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  This certification is provided solely pursuant to 18 U.S.C. Section 1350 and Item 601(b)(32) of Regulation S-K (“Item 601(b)(32)”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act.  In accordance with clause (ii) of Item 601(b)(32), this certification (A) shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and (B) shall not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.

Date: November 5, 2004	/s/ William C. McCartney	 	
 	William C. McCartney	
 	Chief Financial Officer