exv10w1






Exhibit 10.1




EXECUTION COPY




 
 





FIVE YEAR CREDIT AGREEMENT




Dated as of April 15, 2008



Among



PACKAGING CORPORATION OF AMERICA

as Borrower



and



THE INITIAL LENDERS NAMED HEREIN



as Initial Lenders


and



DEUTSCHE BANK AG NEW YORK BRANCH



as Syndication Agent



and



JPMORGAN CHASE BANK, N.A.



as Administrative Agent



and



DEUTSCHE BANK SECURITIES INC..



as Sole Lead Arranger and Book Manager



 
 




 









 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Certain Defined Terms
	 	 	4	 
	SECTION 1.02. Computation of Time Periods
	 	 	14	 
	SECTION 1.03. Accounting Terms
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. The Advances and Letters of Credit
	 	 	14	 
	SECTION 2.02. Making the Advances
	 	 	15	 
	SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit
	 	 	16	 
	SECTION 2.04. Fees
	 	 	17	 
	SECTION 2.05. Optional Termination or Reduction of the Commitments
	 	 	17	 
	SECTION 2.06. Repayment of Advances
	 	 	17	 
	SECTION 2.07. Interest on Advances
	 	 	18	 
	SECTION 2.08. Interest Rate Determination
	 	 	19	 
	SECTION 2.09. Optional Conversion of Advances
	 	 	19	 
	SECTION 2.10. Prepayments of Advances
	 	 	20	 
	SECTION 2.11. Increased Costs
	 	 	20	 
	SECTION 2.12. Illegality
	 	 	20	 
	SECTION 2.13. Payments and Computations
	 	 	21	 
	SECTION 2.14. Taxes
	 	 	22	 
	SECTION 2.15. Sharing of Payments, Etc.
	 	 	23	 
	SECTION 2.16. Evidence of Debt
	 	 	23	 
	SECTION 2.17. Use of Proceeds
	 	 	24	 
	SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments
	 	 	24	 






 









 






	 	 	 	 	 

	SECTION 2.19. Extension of Termination Date
	 	 	25	 
	SECTION 2.20. Regulation D Compensation
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01
	 	 	27	 
	SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.
	 	 	28	 
	SECTION 3.03. Determinations Under Section 3.01
	 	 	28	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Representations and Warranties of the Borrower
	 	 	29	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Affirmative Covenants
	 	 	30	 
	SECTION 5.02. Negative Covenants
	 	 	32	 
	SECTION 5.03. Financial Covenants
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	35	 
	SECTION 6.02. Actions in Respect of the Letters of Credit upon Default
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Authorization and Action
	 	 	37	 
	SECTION 7.02. Agent’s Reliance, Etc.
	 	 	37	 
	SECTION 7.03. JPMorgan and Affiliates
	 	 	38	 
	SECTION 7.04. Lender Credit Decision
	 	 	38	 
	SECTION 7.05. Indemnification
	 	 	38	 
	SECTION 7.06. Successor Agent
	 	 	39	 
	SECTION 7.07. Other Agents.
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Amendments, Etc.
	 	 	39	 






2









 






	 	 	 	 	 

	SECTION 8.02. Notices, Etc.
	 	 	40	 
	SECTION 8.03. No Waiver; Remedies
	 	 	40	 
	SECTION 8.04. Costs and Expenses
	 	 	40	 
	SECTION 8.05. Right of Set-off
	 	 	41	 
	SECTION 8.06. Binding Effect
	 	 	41	 
	SECTION 8.07. Assignments and Participations
	 	 	41	 
	SECTION 8.08. Confidentiality
	 	 	43	 
	SECTION 8.09. Governing Law
	 	 	44	 
	SECTION 8.10. Execution in Counterparts
	 	 	44	 
	SECTION 8.11. Jurisdiction, Etc.
	 	 	44	 
	SECTION 8.12. No Liability of the Issuing Banks
	 	 	44	 
	SECTION 8.13. Patriot Act Notice
	 	 	44	 
	SECTION 8.14. Waiver of Jury Trial
	 	 	45	 







3












 





	 

	Schedules

	 

	Schedule I — List of Applicable Lending Offices

	 

	Schedule 2.01(b) — Existing Letters of Credit

	 

	Schedule 5.02(a) — Existing Liens

	 

	Schedule 5.02(d) — Existing Debt







	 	 	 	 	 

	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Promissory  Note
	 
	 	 	 	 
	Exhibit B

	 	—
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	Exhibit C

	 	—
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Exhibit D

	 	—
	 	Form of Opinion of Counsel for the Borrower
	 
	 	 	 	 
	Exhibit E

	 	—
	 	Form of Subsidiary Guaranty



















 





FIVE YEAR CREDIT AGREEMENT




Dated as of April 15, 2008




          PACKAGING CORPORATION OF AMERICA, a Delaware corporation (the “Borrower”), the banks,
financial institutions and other institutional lenders (the “Initial Lenders”) and initial
issuing banks (the “Initial Issuing Banks”) listed on the signature pages hereof, DEUTSCHE
BANK SECURITIES INC., as sole lead arranger and book manager, DEUTSCHE BANK AG NEW YORK BRANCH, as
syndication agent, and JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as agent (the
“Agent”) for the Lenders (as hereinafter defined), agree as follows:



ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS




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



     “Advance” has the meaning specified in Section 2.01(a).



     “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to vote 20% or more of the
Voting Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.



     “Agent’s Account” means the account of the Agent maintained by the Agent at
JPMorgan at its office at 1111 Fannin, 10th Floor, Houston, Texas 77002, Account No.
9008113381H0441, Attention: Leslie Opeyemi; E-Mail Address: leslie.d.opeyemi@chase.com).



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



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



	 	 	 	 	 	 	 	 	 
	Public Debt Rating	 	Applicable Margin for	 	 	Applicable Margin for	 
	S&P/Moody’s	 	Base Rate Advances	 	 	Eurodollar Rate Advances	 
	Level 1
	 	 	 	 	 	 	 	 
	BBB+ or Baa1 or above
	 	 	(0.125	%)	 	 	0.500	%
	 
	Level 2
	 	 	 	 	 	 	 	 
	BBB or Baa2
	 	 	(0.150	%)	 	 	0.600	%
	 
	Level 3
	 	 	 	 	 	 	 	 
	BBB- or Baa3
	 	 	(0.175	%)	 	 	0.700	%
	 
	Level 4
	 	 	 	 	 	 	 	 
	BB+ and Ba1
	 	 	0.000	%	 	 	0.800	%
	 
	Level 5
	 	 	 	 	 	 	 	 
	Lower than Level 4
	 	 	0.000	%	 	 	1.000	%






4









 






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



	 	 	 	 	 
	Public Debt Rating	 	Applicable	 
	S&P/Moody’s	 	Percentage	 
	Level 1
	 	 	 	 
	BBB+ or Baa1 or above
	 	 	0.125	%
	 
	Level 2
	 	 	 	 
	BBB or Baa2
	 	 	0.150	%
	 
	Level 3
	 	 	 	 
	BBB- or Baa3
	 	 	0.175	%
	 
	Level 4
	 	 	 	 
	BB+ and Ba1
	 	 	0.200	%
	 
	Level 5
	 	 	 	 
	Lower than Level 4
	 	 	0.250	%






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



     “Assuming Lender” has the meaning specified in Section 2.18(c).



     “Assumption Agreement” has the meaning specified in Section 2.18(c)(ii).



     “Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).



     “Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the higher of:




	 	(a)	 	the rate of interest announced publicly by JPMorgan in New York, New
York, from time to time, as JPMorgan’s prime rate; and
	 
	 	(b)	 	1/2 of one percent per annum above the Federal Funds Rate.





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



     “Borrower Information” has the meaning specified in Section 8.08.



     “Borrowing” means a borrowing consisting of simultaneous Advances of the same
Type made by each of the Lenders pursuant to Section 2.01(a).



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



5









 





     “Change in Control” means any of (i) any Person or two or more Persons acting
in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities convertible into such Voting Stock) representing 35% or
more of the combined voting power of all Voting Stock of the Borrower; or (ii) during any
period of up to 12 consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 12-month period were directors of the Borrower
shall cease for any reason (other than due to death or disability) to constitute a majority
of the board of directors of the Borrower (except to the extent that individuals who at the
beginning of such 12-month period were replaced by individuals (x) elected by a majority of
the remaining members of the board of directors of the Borrower or (y) nominated for
election by a majority of the remaining members of the board of directors of the Borrower
and thereafter elected as directors by the shareholders of the Borrower); or (iii) any
Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower; or (iv) a “change in
control” or similar event shall occur as provided in any instrument or agreement governing
Debt of the Borrower, to the extent the outstanding principal amount of the Debt outstanding
thereunder exceeds $25,000,000.



     “Commitment” means a Revolving Credit Commitment or a Letter of Credit
Commitment.



     “Commitment Date” has the meaning specified in Section 2.18(b).



     “Commitment Increase” has the meaning specified in Section 2.18(a).



     “Consenting Lender” has the meaning specified in Section 2.19(b).



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



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



     “Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of
such property), (e) all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit (excluding commercial letters of credit and letters of credit
issued to support worker’s compensation or insurance obligations), (g) all net obligations
of such Person in respect of Hedge Agreements, (h) all Invested Amounts, (i) all Debt of
others referred to in clauses (a) through (h) above or clause (j) below (collectively,
“Guaranteed Debt”) guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an agreement (1) to
pay or purchase such Guaranteed Debt or to advance or supply funds for the payment or
purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed Debt
against loss, (3) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such property is
received or such services are rendered) or (4) otherwise to assure a creditor against loss,
and (j) all Debt referred to in clauses (a) through (i) above (including Guaranteed Debt)
secured by (or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt;



6









 




provided, that “Debt” shall not include obligations under trade payables, accrued expenses and other current liabilities (other than as
described in clauses (a) or (c) above) incurred by any Person in accordance with its
customary practices and in the ordinary course of business.




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



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



     “EBITDA” means, for any period, net income (or net loss) plus the sum
of (a) interest expense, (b) income tax expense, (c) depletion and depreciation expense and
(d) amortization expense, in each case without giving effect to any extraordinary gains or
losses or gains or losses from sales of assets other than inventory sold in the ordinary
course of business, and determined in accordance with GAAP for such period.



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



     “Eligible Assignee” means (a) with respect to the Revolving Credit Facility (i)
a Lender; (ii) an Affiliate of a Lender; (iii) a commercial bank organized under the laws of
the United States, or any State thereof; (iv) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic Cooperation and
Development or has concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow, or a political subdivision of any
such country, so long as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described in this clause (iv);
and (v) any other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with Section 8.07,
the Borrower, such approvals not to be unreasonably withheld or delayed and (b) with respect
to the Letter of Credit Facility, a Person that is an Eligible Assignee under subclause (i),
(ii), (iii) or (iv) of clause (a) of this definition and is approved by the Agent and,
unless an Event of Default has occurred and is continuing at the time any assignment is
effected pursuant to Section 8.07, the Borrower; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.



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



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



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



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



7









 





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



     “ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within
the following 30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of the Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.



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



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



     “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, the rate per annum appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/10,000 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank’s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period. If the Reuters Screen LIBOR01 Page (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.



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



     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors



8









 




of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar Rate Advances
is determined) having a term equal to such Interest Period.




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



     “Extension Date” has the meaning specified in Section 2.19(b).



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.



     “GAAP” has the meaning specified in Section 1.03.



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



     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements.



     “Increase Date” has the meaning specified in Section 2.18(a).



     “Increasing Lender” has the meaning specified in Section 2.18(b).



     “Information Memorandum” means the information memorandum dated March 4, 2008
used by the Agent in connection with the syndication of the Commitments.



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



     (a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance that ends after the final Termination Date;



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



9









 





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



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



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



     “Invested Amounts” means the amounts invested by investors that are not
Affiliates of the Borrower in connection with a Permitted Receivables Financing and paid to
the Borrower or any of its Subsidiaries, as reduced by the aggregate amounts received by
such investors from the payment of receivables and applied to reduce such invested amounts.



     “Issuing Bank” means an Initial Issuing Bank, any Eligible Assignee to which a
portion of a Letter of Credit Commitment hereunder has been assigned pursuant to Section
8.07 or any Lender so long as such Eligible Assignee or such Lender expressly agrees to
perform in accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of
its Applicable Lending Office (which information shall be recorded by the Agent in the
Register), for so long as the Initial Issuing Bank, Eligible Assignee or Lender, as the case
may be, shall have a Letter of Credit Commitment.



     “L/C Cash Collateral Account” means an interest bearing cash collateral account
to be established and maintained by the Agent, over which the Agent shall have sole dominion
and control, upon terms as may be satisfactory to the Agent.



     “L/C Related Documents” has the meaning specified in Section 2.06(b)(i).



     “Lenders” means the Initial Lenders, each Issuing Bank, each Assuming Lender
that shall become a party hereto pursuant to Section 2.18 or 2.19 and each Person that shall
become a party hereto pursuant to Section 8.07.



     “Letter of Credit” has the meaning specified in Section 2.01(b).



     “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).



     “Letter of Credit Commitment” means as to any Issuing Bank (a) the amount set
forth opposite such Lender’s name on Schedule I hereto under the caption “Letter of Credit
Commitment” or (b) in the case of each Initial Issuing Bank that has entered into an
Assignment and Acceptance and in the case of each other Issuing Bank, the amount set forth
for such Issuing Bank in the Register maintained by the Agent pursuant to Section 8.07(d) as
such Issuing Bank’s “Letter of Credit Commitment”, as such amount may be reduced pursuant to
Section 2.05.



     “Letter of Credit Facility” means, at any time, an amount equal to the lesser
of (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time
and (b) $35,000,000, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.



10









 





     “Lien” means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.



     “Loan Document” means this Agreement, the Notes, the other L/C Related
Documents and each Guaranty delivered pursuant to Section 5.01(j).



     “Loan Parties” means the Borrower and each Subsidiary of the Borrower party to
the Subsidiary Guaranties delivered pursuant to Section 5.01(j).



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



     “Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance or properties of the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or the
Lenders under any Loan Document or (c) the ability of the Loan Parties to perform their
obligations under the Loan Documents.



     “Material Subsidiary” of the Borrower means, at any time, any Subsidiary of the
Borrower (other than Packaging Credit Company LLC and Packaging Receivables Company LLC)
that, together with its Subsidiaries, has (a) Consolidated assets with a value of not less
than 10% of the total value of the assets of the Borrower and its Consolidated Subsidiaries,
taken as a whole, or (b) Consolidated EBITDA not less than 10% of the Consolidated EBITDA of
the Borrower and its Subsidiaries, taken as a whole, in each case as of the end of or for
the most recently completed fiscal quarter of the Borrower.



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



     “Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.



     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.



     “Non-Consenting Lender” has the meaning specified in Section 2.19(b).



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



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



     “Notice of Issuance” has the meaning specified in Section 2.03(a).



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



     “Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s, repairmen’s and customs Liens



11









 




and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a
period of more than 30 days unless being contested in good faith by proper proceedings and
as to which appropriate reserves are being maintained; (c) pledges or deposits to secure
obligations under workers’ compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other encumbrances, restrictions
or deficiencies on title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use of such property for
its present purposes.




     “Permitted Receivables Financing” means any financing pursuant to which the
Borrower or any Subsidiary of the Borrower may sell, convey, or otherwise transfer to a
Receivables Subsidiary or any other Person, or grant a security interest in, any accounts
receivable (and related assets) of the Borrower or such Subsidiary, provided that such
financing shall be on customary market terms and shall be with limited or no recourse to the
Borrower and its Subsidiaries (other than the Receivables Subsidiary) except to the extent
customary for such transactions.



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



     “Plan” means a Single Employer Plan or a Multiple Employer Plan.



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



     “Ratable Share” of any amount means, with respect to any Lender at any time,
the product of (a) a fraction the numerator of which is the amount of such Lender’s
Revolving Credit Commitment at such time and the denominator of which is the aggregate
Revolving Credit Commitments at such time and (b) such amount.



     “Receivables Subsidiary” means a bankruptcy-remote, special-purpose wholly
owned Subsidiary formed in connection with a Permitted Receivables Financing.



     “Reference Banks” means JPMorgan, Deutsche Bank AG New York Branch and Bank of
America, N.A.



     “Register” has the meaning specified in Section 8.07(d).



     “Required Lenders” means, at any time, Lenders owed or holding at least a
majority in interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (c) the aggregate Unused Revolving



12









 






	Credit Commitments at such time. For purposes of this definition, the Available Amount of each Letter of Credit shall
be considered to be owed to the Lenders ratably in accordance with their respective
Revolving Credit Commitments.





     “Revolving Credit Commitment” means as to any Lender (a) the amount set forth
opposite such Lender’s name on Schedule I hereto under the caption “Revolving Credit
Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if such Lender has
entered into an Assignment and Acceptance, the amount set forth for such Lender in the Register maintained by the Agent pursuant to Section
8.07(d) as such Lender’s “Revolving Credit Commitment”, as such amount may be reduced
pursuant to Section 2.05 or increased pursuant to Section 2.18.



     “Revolving Credit Facility” means, at any time, the aggregate of the Revolving
Credit Commitments at such time.



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



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



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



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



     “Subsidiary Guarantor” means each Subsidiary of the Borrower that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).



     “Subsidiary Guaranty” means the guaranty of the Subsidiary Guarantors delivered
pursuant to Section 5.01(j).



     “Termination Date” means the earlier of (a) April 15, 2013, subject to the
extension thereof pursuant to Section 2.19 and (b) the date of termination in whole of the
Revolving Credit Commitments and the Letter of Credit Commitments pursuant to Section 2.05
or 6.01; provided, however, that the Termination Date of any Lender that is
a Non-Consenting Lender to any requested extension pursuant to



13









 





     Section 2.19 shall be the Termination Date in effect immediately prior to the applicable Extension Date for all
purposes of this Agreement.




     “Type” refers to the distinction between Advances bearing interest at the Base
Rate and Advances bearing interest at the Eurodollar Rate.



     “Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank,
such Issuing Bank’s Letter of Credit Commitment minus the aggregate Available Amount
of all Letters of Credit issued by such Issuing Bank.



     “Unused Revolving Credit Commitment” means, with respect to each Lender at any
time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum
of (i) the aggregate principal amount of all Advances made by such Lender (in its capacity
as a Lender) and outstanding at such time, plus (ii) such Lender’s Ratable Share of
the aggregate Available Amount of all the Letters of Credit outstanding at such time.



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



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



          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles as in effect in the
United States from time to time (“GAAP”), provided that (a) if there is any change
in GAAP from such principles applied in the preparation of the audited financial statements
referred to in Section 4.01(e) (“Initial GAAP”), that is material in respect of the
calculation of compliance with the covenants set forth in Section 5.03, the Borrower shall give
prompt notice of such change to the Agent and the Lenders, (b) if the Borrower notifies the Agent
that the Borrower requests an amendment of any provision hereof to eliminate the effect of any
change in GAAP (or the application thereof) from Initial GAAP (or if the Agent or the Required
Lenders request an amendment of any provision hereof for such purpose), regardless of whether such
notice is given before or after such change in GAAP (or the application thereof), then such
provision shall be applied on the basis of generally accepted accounting principles as in effect
and applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision is amended in accordance herewith.



ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT




          SECTION 2.01. The Advances and Letters of Credit. (a) Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each,
an “Advance”) to the Borrower from time to time on any Business Day during the period from
the Effective Date until the Termination Date applicable to such Lender in an amount not to exceed
such Lender’s Unused Revolving Credit Commitment at such time. Each Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Lender’s Revolving Credit
Commitment, the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and
reborrow under this Section 2.01(a).



          (b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (each, a “Letter of Credit”) for the
account of the Borrower from time to time on any Business Day during the period from the Effective
Date until 30 days before the Termination Date applicable to



14









 




such Issuing Bank in an aggregate Available Amount (i) for all Letters of Credit issued by each Issuing Bank not to exceed at any
time the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bank’s
Letter of Credit Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the Lenders at such time. Other than as
specified on Schedule 2.01(b), no Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than (x) the date that is one
year after the date of issuance thereof and (y) 10 Business Days prior to the final
Termination Date, provided that no Letter of Credit may expire after the Termination
Date of any Non-Consenting Lender if, after giving effect to such issuance, the aggregate Revolving
Credit Commitments of the Consenting Lenders (including any replacement Lenders) for the period
following such Termination Date would be less than the Available Amount of the Letters of Credit
expiring after such Termination Date. Within the limits of the Letter of Credit Facility and
subject to the limits referred to above, the Borrower may request the issuance of Letters of Credit
under this Section 2.01(b), repay any Advances resulting from drawings thereunder pursuant to
Section 2.03(c) and request the issuance of additional Letters of Credit under this Section
2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be deemed to constitute a Letter
of Credit issued hereunder, and each Lender that is an issuer of such a Letter of Credit shall, for
purposes of Section 2.03, be deemed to be an Issuing Bank for each such letter of credit,
provided than any renewal or replacement of any such letter of credit shall be issued by an
Issuing Bank pursuant to the terms of this Agreement.




          SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.03, each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time) on the date
of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Lender prompt notice thereof by telecopier. Each
such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for such Advances. Each Lender shall, before
1:00 P.M. (New York City time) on the date of such Borrowing make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s
ratable portion of such Borrowing in accordance with the respective Revolving Credit Commitments of
such Lender and the other Lenders. After the Agent’s receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent’s address referred to in Section 8.02.



          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may
not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is
less than $5,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.08 or 2.12 and (ii) Borrowings comprised of Eurodollar Rate
Advances may not be outstanding as part of more than six separate Interest Periods.



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



          (d) Unless the Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date



15









 




such amount is made available to the Borrower until the date
such amount is repaid to the Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute
such Lender’s Advance as part of such Borrowing for purposes of this Agreement.




          (e) The failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its
Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.



          SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given
not later than 1:00 P.M. (New York City time) on the third Business Day prior to the date of the
proposed issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by the Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent
prompt notice thereof by telecopier. Each such notice of issuance of a Letter of Credit (a
“Notice of Issuance”) shall be by telephone, confirmed immediately in writing, or
telecopier, specifying therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit,
(D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such customary application and agreement for letter of credit
as such Issuing Bank may specify to the Borrower requesting such issuance for use in connection
with such requested Letter of Credit (a “Letter of Credit Agreement”). If the requested
form of such Letter of Credit is acceptable to such Issuing Bank in its sole discretion, such
Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower requesting such issuance at its office referred to
in Section 8.02 or as otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with
this Agreement, the provisions of this Agreement shall govern.



          (b) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to
such Lender’s Ratable Share of the aggregate amount available to be drawn under such Letter of
Credit. The Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Agent, for the account of such Issuing Bank, such Lender’s Ratable Share of each drawing made
under a Letter of Credit funded by such Issuing Bank and not reimbursed by the Borrower on the date
made, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each
Lender acknowledges and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving
Credit Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender further acknowledges and agrees that its
participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s
Ratable Share of the Available Amount of such Letter of Credit at each time such Lender’s Revolving
Credit Commitment is amended pursuant to an assignment in accordance with Section 8.07 or otherwise
pursuant to this Agreement.



          (c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn
under any Letter of Credit shall constitute for all purposes of this Agreement the making by such
Issuing Bank of an Advance, which shall be a Base Rate Advance, in the amount of such draft. Each
Issuing Bank shall give prompt notice of each drawing under any Letter of Credit issued by it to
the Borrower and the Agent. Upon written demand by such Issuing Bank to the Agent, which the Agent
shall promptly forward to the Lenders, each Lender shall pay to the Agent such Lender’s Ratable
Share of such outstanding Advance, by making available for the account of its Applicable Lending
Office to the Agent for the account of such Issuing Bank, by deposit to the Agent’s Account, in
same day funds, an amount equal to the portion of the outstanding principal amount of such Advance
to be funded by such Lender. Promptly after receipt thereof, the Agent shall transfer such funds
to such Issuing Bank. Each Lender agrees to fund its Ratable Share of an outstanding Advance on
(i) the Business Day on which demand therefor is made by such Issuing Bank, provided that
notice of such demand is given not later than 11:00 A.M.



16









 




(New York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after
such time. If and to the extent that any Lender shall not have so made the amount of such Advance
available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by any such Issuing Bank until
the date such amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such Issuing
Bank, as applicable. If such Lender shall pay to the Agent such amount for the account of any such
Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute an
Advance made by such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.




          (d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to the Agent on
the first Business Day of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued by it during the preceding month and drawings during such month under all
Letters of Credit and (ii) to the Agent on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by it. The Agent shall promptly forward to each
Lender each report received by it in accordance with this Section 2.03(d).



          (e) Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.



          SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of such Lender’s
Revolving Credit Commitment from the Effective Date in the case of each Initial Lender and from the
effective date specified in the Assumption Agreement or in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the Termination Date applicable
to such Lender at a rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2008, and on such Termination Date.



          (b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the
account of each Lender a commission on such Lender’s Ratable Share of the average daily aggregate
Available Amount of all Letters of Credit outstanding from time to time at a rate per annum equal
to the Applicable Margin for Eurodollar Rate Advances in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December, commencing June 30,
2008, and on the Termination Date applicable to such Lender and after the final Termination Date
payable upon demand.



     (ii) The Borrower shall pay to each Issuing Bank for its own account such fronting,
issuance and other reasonable fees as may from time to time be agreed in writing between the
Borrower and such Issuing Bank.



          (c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such
fees as may from time to time be agreed between the Borrower and the Agent.



          SECTION 2.05. Optional Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days’ notice (or, if the Facilities are to be
refinanced in full, upon notice given on the date of such termination) to the Agent, to terminate
in whole or permanently reduce in part the Unused Revolving Credit Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall be made ratably among the Lenders in
accordance with their Commitments.



          SECTION 2.06. Repayment of Advances. (a) Advances. The Borrower shall
repay to the Agent for the account of each Lender on the Termination Date applicable to such Lender
the aggregate principal amount of the Advances made by such Lender and then outstanding.



17









 





          (b) Letter of Credit Reimbursements. The obligations of the Borrower under this
Agreement, any Letter of Credit Agreement and any other agreement or instrument, in each case,
relating to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument
under all circumstances, including, without limitation, the following circumstances (it being
understood that any such payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of the payment by any
Issuing Bank of any draft or the reimbursement by the Borrower thereof):



     (i) any lack of validity or enforceability of this Agreement, any Letter of Credit,
any Letter of Credit Agreement or any other agreement or instrument, in each case, relating
thereto (all of the foregoing being, collectively, the “L/C Related Documents”);



     (ii) any change in the time, manner or place of payment of, or in any other term
of, all or any of the obligations of the Borrower in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure from all or any of the L/C
Related Documents;



     (iii) the existence of any claim, set-off, defense or other right that the Borrower
may have at any time against any beneficiary or transferee of a Letter of Credit (or any
Person for which any such beneficiary or transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;



     (iv) any statement or any other document presented under a 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;



     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;



     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or



     (vii) any other circumstance or happening whatsoever, whether or not similar to any
of the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or a guarantor.



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



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



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



18









 





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



          SECTION 2.08. Interest Rate Determination. (a) Promptly after receipt of a Notice
of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.09 or a
notice of selection of an Interest Period pursuant to the terms of the definition of “Interest
Period”, the Agent shall give prompt notice to the Borrower and each Lender of the applicable
interest rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if
any, furnished by each Reference Bank for the purpose of determining the interest rate under
Section 2.07(a)(ii). Each Reference Bank agrees to furnish to the Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any such interest rate,
the Agent shall determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.



          (b) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances.



          (c) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$3,000,000, such Advances shall automatically Convert into Base Rate Advances.



          (d) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.



          (f) If Reuters Screen LIBOR01 Page is unavailable and none of the Reference Banks furnish
timely information to the Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances,



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



     (ii) so long as such circumstance continue, each such Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance) and the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended.



          SECTION 2.09. Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section 2.02(b), no



19









 




Conversion of any Advances shall result in more separate
Borrowings under such Facility than permitted under Section 2.02(b) and each Conversion of
Advances comprising part of the same Borrowing shall be made ratably among the Lenders in
accordance with their Revolving Credit Commitments. Each such notice of a Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.




          SECTION 2.10. Prepayments of Advances. The Borrower may on any Business Day, upon
notice to the Agent not later than 11:00 A.M. (New York City time) stating the date and aggregate
principal amount of a proposed prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).



          SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction after the
date hereof of or any change after the date hereof in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request issued after the date hereof from
any central bank or other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or agreeing to issue or of issuing or maintaining or
participating in Letters of Credit (excluding for purposes of this Section 2.11 any such increased
costs resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes after the date hereof in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political subdivision thereof),
then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand
to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost; provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost, submitted to the Borrower and the
Agent by such Lender, shall be prima facie evidence of the correctness thereof for
all purposes, absent manifest error.



          (b) If any Lender reasonably determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law) adopted or issued after the date hereof affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the existence of such
Lender’s commitment to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be prima facie
evidence of the correctness thereof for all purposes, absent manifest error.



          (c) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than six months prior to the date that
such Lender notifies the Borrower of the change or circumstance giving rise to such increased costs
or reductions and of such Lender’s intention to claim compensation therefor; provided
further that, if the change or circumstance giving rise to such increased costs or
reductions is retroactive, then the six-month period referred to above shall be extended to include
the period of retroactive effect thereof.



          SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation



20









 




makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance made by such Lender will
automatically, on the last day of the current Interest Period or, if required by law, upon such
demand, Convert into a Base Rate Advance and (b) the obligation of such Lender to make Eurodollar
Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and such Lender that the circumstances causing such suspension no
longer exist; provided, however, that before making any such demand, such Lender
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. Each request for a Eurodollar Rate Borrowing or a Conversion into Eurodollar Rate Advances
shall, as to such affected Lender only, be deemed to be a request for a Base Rate Advance, and all
payments and prepayments of principal which would otherwise have been applied to repay the
Eurodollar Rate Advances of such Lender shall instead be applied to repay or prepay the Base Rate
Advances made by such Lender in lieu thereof, or resulting from the Conversion of, such Eurodollar
Rate Advances.




          SECTION 2.13. Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or fees or commissions ratably (other than amounts payable
pursuant to Section 2.03, 2.06, 2.11, 2.14, 2.20 or 8.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18 or an
extension of the Termination Date pursuant to Section 2.19, and upon the Agent’s receipt of such
Lender’s Assumption Agreement and recording of the information contained therein in the Register,
from and after the applicable Increase Date or Extension Date, as the case may be, the Agent shall
make all payments hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register pursuant to Section
8.07(c), from and after the effective date specified in such Assignment and Acceptance, the Agent
shall make all payments hereunder and under the Notes in respect of the interest assigned thereby
to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective date directly between
themselves.



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



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



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



21









 




thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.




          SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under
the laws of which such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s
Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder
or under the Notes being hereinafter referred to as “Taxes”). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.



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



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



          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to
the Agent, at its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing such payment to the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by or on behalf of
the Borrower through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or shall cause such payor to furnish,
to the Agent, at such address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection (e), the terms
“United States” and “United States person” shall have the meanings specified in
Section 7701 of the Internal Revenue Code.



          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
reasonably requested in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the Notes. If the
form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax



22









 




at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the
Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form
or document such confidential information.




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



          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.



          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.11, 2.12, 2.14, 2.20 or
8.04(c)) in excess of its ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price
to the extent of such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.



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



          (b) The Register maintained by the Agent pursuant to Section 8.07(d) shall include a
control account, and a subsidiary account for each Lender, in which accounts (taken together) shall
be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by
it, (iii) the amount of any principal or interest due and



23









 




payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Agent from the
Borrower hereunder and each Lender’s share thereof.




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



          SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the
Borrower and its Subsidiaries.



          SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments. (a) The
Borrower may, at any time but in any event not more than twice in any calendar year prior to the
final Termination Date, by notice to the Agent, request that the aggregate amount of the Revolving
Credit Commitments be increased by an amount of $20,000,000 or an integral multiple thereof (each a
“Commitment Increase”) to be effective as of a date that is at least 90 days prior to the
scheduled final Termination Date then in effect (the “Increase Date”) as specified in the
related notice to the Agent; provided, however that (i) in no event shall the
aggregate amount of the Revolving Credit Commitments at any time exceed $250,000,000 and (ii) on
the date of any request by the Borrower for a Commitment Increase and on the related Increase Date
(A) the representations and warranties contained in Section 4.01 shall correct on and as
of such date, before and after giving effect to such Commitment Increase, as though made on and as
of such date and (B) no event has occurred and is continuing, or would result from such Commitment
Increase, that constitutes a Default.



          (b) The Agent shall promptly notify such Lenders or Eligible Assignees as the Borrower may
direct of a request by the Borrower for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii)
the date by which Lenders wishing to participate in the Commitment Increase must commit to an
increase in the amount of their respective Revolving Credit Commitments (the “Commitment
Date”). Each such Lender that is willing to participate in such requested Commitment Increase
(each an “Increasing Lender”) shall, in its sole discretion, give written notice to the
Agent on or prior to the Commitment Date of the amount by which it is willing to increase its
Revolving Credit Commitment. The requested Commitment Increase shall be allocated among the
Lenders willing to participate therein and the applicable Assuming Lenders in such amounts as are
agreed between the Borrower and the Agent.



          (c) On each Increase Date, each Eligible Assignee that accepts an offer to participate in
a requested Commitment Increase in accordance with Section 2.18(b) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Termination Date in accordance with
Section 2.19(c), an “Assuming Lender”) shall become a Lender party to this Agreement as of
such Increase Date and the Revolving Credit Commitment of each Increasing Lender for such requested
Commitment Increase shall be so increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.18(b)) as of such Increase Date; provided,
however, that the Revolving Credit Commitment of each such Eligible Assignee shall be in an
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and the Agent shall
have received on or before such Increase Date the following, each dated such date:



     (i) (A) certified copies of resolutions of the Board of Directors of the Borrower or
the Executive Committee of such Board authorizing the Commitment Increase and (B) an opinion
of counsel for the Borrower (which may be in-house counsel), in substantially the form of
Exhibit D hereto;



     (ii) an assumption agreement from each Assuming Lender, if any, in form and
substance satisfactory to the Borrower and the Agent (each an “Assumption
Agreement”), duly executed by such Eligible Assignee, the Agent and the Borrower; and



24









 





     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Revolving Credit Commitment in a writing satisfactory to the Borrower and the Agent.


On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.18(c), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by
telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, before
2:00 P.M. (New York City time) on the Increase Date, make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of
such Assuming Lender, an amount equal to such Assuming Lender’s ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on its Revolving Credit Commitment as a
percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the
relevant Commitment Increase) and, in the case of such Increasing Lender, an amount equal to the
excess of (i) such Increasing Lender’s ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate
Revolving Credit Commitments outstanding after giving effect to the relevant Commitment Increase)
over (ii) such Increasing Lender’s ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Revolving Credit Commitment (without giving effect to the
relevant Commitment Increase) as a percentage of the aggregate Revolving Credit Commitments
(without giving effect to the relevant Commitment Increase). After the Agent’s receipt of such
funds from each such Increasing Lender and each such Assuming Lender, the Agent will promptly
thereafter cause to be distributed like funds to the other Lenders for the account of their
respective Applicable Lending Offices in an amount to each other Lender such that the aggregate
amount of the outstanding Revolving Credit Advances owing to each Lender after giving effect to
such distribution equals such Lender’s ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate
Revolving Credit Commitments outstanding after giving effect to the relevant Commitment Increase).




          SECTION 2.19. Extension of Termination Date. (a) At least 45 days but not more than
60 days prior to the first and/or second anniversary of the Effective Date, the Borrower, by
written notice to the Agent, may request an extension of the Termination Date in effect at such
time by one year from its then scheduled expiration. The Agent shall promptly notify each Lender
of such request, and each Lender shall in turn, in its sole discretion, not later than 20 days
prior to the applicable anniversary date, notify the Borrower and the Agent in writing as to
whether such Lender will consent to such extension. If any Lender shall fail to notify the Agent
and the Borrower in writing of its consent to any such request for extension of the Termination
Date at least 20 days prior to the applicable anniversary date, such Lender shall be deemed to be a
Non-Consenting Lender with respect to such request. The Agent shall notify the Borrower not later
than 15 days prior to the applicable anniversary date of the decision of the Lenders regarding the
Borrower’s request for an extension of the Termination Date.



          (b) If all the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.19, the Termination Date in effect at such time shall, effective
as at the Termination Date (the “Extension Date”), be extended for one year;
provided that on each Extension Date (i) the representations and warranties contained in
Section 4.01 shall be correct on and as of such date, before and after giving effect to such
Extension Date, as though made on and as of such date and (ii) no event shall have occurred and be
continuing, or would result from such Extension Date, that constitutes a Default. If less than all
of the Lenders consent in writing to any such request in accordance with subsection (a) of this
Section 2.19, the Termination Date in effect at such time shall, effective as at the applicable
Extension Date and subject to subsection (d) of this Section 2.19, be
extended as to those Lenders that so consented (each a “Consenting Lender”) but shall
not be extended as to any other Lender (each a “Non-Consenting Lender”). To the extent
that the Termination Date is not extended as to any Lender pursuant to this Section 2.19 and the
Commitment(s) of such Lender is not assumed in accordance with subsection (c) of this Section 2.19
on or prior to the applicable Extension Date, the Commitment(s) of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without any further notice or
other action by the Borrower, such Lender or any other Person; provided that such
Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.04, and its obligations under
Section 7.05, shall survive the Termination Date for such Lender as to matters occurring prior to
such date. It is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrower for any requested extension of the Termination Date.



25









 





          (c) If less than all of the Lenders consent to any such request pursuant to subsection (a)
of this Section 2.19, the Agent shall promptly so notify the Borrower, and the Borrower may arrange
for one or more Consenting Lenders or other Eligible Assignees as Assuming Lenders to assume,
effective as of the Extension Date, any Non-Consenting Lender’s Commitment(s) and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that the amount of the Revolving Credit Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $5,000,000 unless the amount of the Revolving Credit
Commitment of such Non-Consenting Lender is less than $5,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:



     (i) any such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and
unpaid to the effective date of the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees and commissions
owing to such Non-Consenting Lender as of the effective date of such assignment;



     (ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to
such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have
been paid to such Non-Consenting Lender; and



     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 8.07(a) for such assignment shall have been paid;


provided further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14
and 8.04, and its obligations under Section 7.05, shall survive such substitution as to matters
occurring prior to the date of substitution. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of its Commitment(s)
and (C) each Non-Consenting Lender being replaced pursuant to this Section 2.19 shall have
delivered to the Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this Agreement and shall be a Lender for all
purposes of this Agreement, without any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder shall, by the provisions
hereof, be released and discharged.




          (d) If (after giving effect to any assignments or assumptions pursuant to subsection (c)
of this Section 2.19) Lenders having Revolving Credit Commitments equal to at least 50% of the
Revolving Credit Commitments in effect immediately prior to the Extension Date consent in writing
to a requested extension (whether by execution or delivery of an Assumption Agreement or otherwise)
not later than one Business Day prior to such Extension Date, the Agent shall so notify the
Borrower, and, subject to the condition that (i) the representations and warranties contained in
Section 4.01 shall be correct on and as of such date, before and after giving effect to such
Extension Date, as though made on and as of such date and (ii) no event shall have occurred
and be continuing, or would result from such Extension Date, that constitutes a Default, the
Termination Date then in effect shall be extended for the additional one-year period as described
in subsection (a) of this Section 2.19, and all references in this Agreement, and in the other Loan
Documents, to the “Termination Date” shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so extended. Promptly
following each Extension Date, the Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Assuming Lender.



26









 





          SECTION 2.20. Regulation D Compensation. Each Lender that is subject to reserve
requirements of the Board of Governors of the Federal Reserve System (or any successor) may require
the Borrower to pay, contemporaneously with each payment of interest on the Eurodollar Rate
Advances, additional interest on the related Eurodollar Rate Advances of such Lender at the rate
per annum equal to the excess of (i) (A) the applicable Eurodollar Rate divided by (B) one minus
the Eurodollar Rate Reserve Percentage over (ii) the rate specified in clause (i)(A). Any Lender
wishing to require payment of such additional interest (x) shall so notify the Agent and the
Borrower, in which case such additional interest on the Eurodollar Rate Advances of such Lender
shall be payable to such Lender at the place indicated in such notice with respect to each Interest
Period commencing at least five Business Days after the giving of such notice and (y) shall notify
the Agent and the Borrower at least five Business Days prior to each date on which interest is
payable of the amount then due it under this Section.



ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




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



     (a) There shall have occurred no event or circumstance that could reasonably be
expected to result in a Material Adverse Change since December 31, 2007.



     (b) There shall exist no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or (ii) could be reasonably likely to
adversely affect the legality, validity or enforceability of this Agreement or any other
Loan Document or the consummation of the transactions contemplated hereby.



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



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



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



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



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



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



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



27









 





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



     (i) The Notes to the order of the Lenders to the extent requested by any
Lender pursuant to Section 2.16.



     (ii) Certified copies of the resolutions of the Board of Directors of the
Borrower approving this Agreement and the Notes, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect to
this Agreement and the Notes.



     (iii) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the Notes and the other documents to be
delivered hereunder.



     (iv) Favorable opinions of (A) Mayer Brown LLP, New York counsel for the
Borrower, substantially in the form of Exhibit D-1 hereto and (B) Kent Pflederer,
General Counsel of the Borrower, substantially in the form of Exhibit D-2 hereto.



     (i) The Borrower shall have terminated the commitments of the lenders and repaid or
prepaid in full all amounts outstanding under the Five Year Credit Agreement dated as of
July 21, 2003 among the Borrower, the lenders parties thereto and JPMorgan Chase Bank, as
administrative agent. By execution of this Agreement, each of the Lenders that is a lender
under the credit agreement referred to above hereby waives the requirements set forth in
Section 2.05 and 2.10 of such credit agreement of prior notice to the termination of its
commitments and prepayment of advances thereunder.



          SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The obligation of
each Lender to make an Advance (other than an Advance made by an Issuing Bank or any Lender
pursuant to Section 2.03(c)) on the occasion of each Borrowing and the obligation of each Issuing
Bank to issue a Letter of Credit, shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing or issuance (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance
and the acceptance by the Borrower of the proceeds of such Borrowing or issuance shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing or such issuance
such statements are true):



     (i) the representations and warranties contained in Section 4.01 are correct on and
as of such date, before and after giving effect to such Borrowing or such issuance and to
the application of the proceeds therefrom, as though made on and as of such date, and



     (ii) no event has occurred and is continuing, or would result from such Borrowing
or such issuance or from the application of the proceeds therefrom, that constitutes a
Default;


and (b) the Agent shall have received such other approvals, opinions or documents as any Lender
through the Agent may reasonably request.




          SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.



28









 





ARTICLE IV




REPRESENTATIONS AND WARRANTIES




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



     (a) Each Loan Party is duly organized, validly existing and in good standing under
the laws of the laws of its justification of organization.



     (b) The execution, delivery and performance by the each Loan Party of the Loan
Documents to which it is a party, and the consummation of the transactions contemplated
hereby and thereby, are within such Loan Party’s corporate or other organizational powers,
have been duly authorized by all necessary corporate or other action, and do not contravene
(i) such Loan Party’s charter or by-laws or other organizational documents, (ii) law, (iii)
any indenture, deed of trust, credit agreement or loan agreement binding on or affecting the
Borrower or (iv) any other material agreement, contract or instrument binding on or
affecting such Loan Party.



     (c) No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due execution,
delivery and performance by any Loan Party of the Loan Documents to which it is or is to be
a party. No authorization or approval or other action by, and no notice to or filing with,
any third party is required for the due execution, delivery and performance by any Loan
Party of the Loan Documents to which it is or is to be a party, except to the extent that
failure to so obtain or so file could not reasonably be expected to have a Material Adverse
Effect.



     (d) This Agreement has been, and each other Loan Document when delivered hereunder
will have been, duly executed and delivered by each Loan Party party thereto. This
Agreement is, and each other Loan Document when delivered hereunder will be, legal, valid
and binding obligations of each Loan Party party thereto enforceable against such Loan Party
in accordance with their respective terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization or moratorium or similar laws affecting the rights of
creditors generally and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).



     (e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2007, and the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of
Ernst & Young LLP, independent public accountants, copies of which have been furnished to
each Lender, fairly present in accordance with GAAP the Consolidated financial condition of
the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2007, no event or circumstance has occurred and is
continuing that could reasonably be expected to result in a Material Adverse Change.



     (f) There is no pending or, to the knowledge of the Borrower, threatened action,
suit, investigation, litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) could be reasonably likely to adversely affect the legality, validity
or enforceability of this Agreement or any other Loan Documents or the consummation of the
transactions contemplated hereby or thereby.



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



29









 




carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.




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



     (i) Each Loan Party is, individually and together with its Subsidiaries, Solvent.



     (j) Neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished in writing by or on behalf of the
Borrower to the Agent or any Lender in connection with the negotiation of this Agreement or
the other Loan Documents or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made and taken as a whole, not materially misleading; provided
that, with respect to projected financial information and forward-looking statements, the
Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time made and provided,
further, that the Borrower makes no representation or warranty with respect to
general industry information contained in the Information Memorandum derived from
consultants or public or third party sources except that the Borrower believed, to the best
of its knowledge and on the date of the Information Memorandum, such information to be
reliable.



ARTICLE V




COVENANTS OF THE BORROWER




          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will:



     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply with all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental Laws, except to the
extent that failure to so comply could not reasonably be expected to have a Material Adverse
Effect.



     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges or levies imposed upon it or upon its property
and (ii) all material lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches
to its property and enforcement actions are begun.



     (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or such Subsidiary operates.



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




30











 






disadvantageous in any material respect to the Borrower, the Borrower and its
Subsidiaries taken as a whole or the Lenders.




     (e) Visitation Rights. At any reasonable time and from time to time upon
reasonable prior notice, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Borrower and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their independent certified
public accountants, provided that, so long as no Default shall have occurred and be
continuing, the Borrower shall have the right to participate in any discussions of the Agent
or any Lender with any independent accountants of the Borrower.




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




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




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




     (i) Reporting Requirements. Furnish to the Agent:




     (i) as soon as available and in any event within 50 days after the end of each
of the first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject to year-end adjustments
and the absence of footnotes) by the chief financial officer, chief executive
officer or treasurer of the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of the chief financial
officer, chief executive officer or treasurer of the Borrower as to compliance with
the terms of this Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;




     (ii) as soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion reasonably acceptable to the
Required Lenders by Ernst & Young LLP or other independent public accountants
reasonably acceptable to the Required Lenders and certificates of the chief
financial officer, chief executive officer or treasurer of the Borrower as to
compliance with the terms of this



31









 






Agreement and setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that in the event of any
change in generally accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;




     (iii) as soon as possible and in any event within five Business Days after the
chief financial officer, the chief executive officer, the treasurer, the controller
or the general counsel of the Borrower obtains actual knowledge of the occurrence of
any Default continuing on the date of such statement, a statement of the chief
financial officer, chief executive officer or treasurer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;




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




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




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




     (j) New Material Subsidiaries. Promptly and in any event within 30 days
following the request of the Required Lenders made after either (i) the organization or
acquisition of any new Material Subsidiary or (ii) the delivery of audited annual financial
statements pursuant to Section 5.01(i) that indicate that a Subsidiary of the Borrower that
is not at such time a Subsidiary Guarantor is a Material Subsidiary, cause such Material
Subsidiary to execute and deliver a Subsidiary Guaranty in substantially the form of Exhibit
E hereto, together with such documents as the Required Lenders may reasonably request
evidencing corporate action taken to authorize such execution and delivery and the
incumbency and signatures of officers of such Material Subsidiary, provided that a
Material Subsidiary shall not be required to become a Subsidiary Guarantor if (A) a guaranty
by such Material Subsidiary would result in materially adverse tax consequences to the
Borrower and its Subsidiaries or shareholders of the Borrower or (B) a guaranty by such
Material Subsidiary is prohibited or limited by regulatory requirements or applicable law.



               SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not:




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




     (i) Permitted Liens,




     (ii) capital leases and purchase money Liens upon or in any real or personal
property acquired or held by the Borrower or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or to secure Debt incurred
solely for the purpose of financing the acquisition of such property, or Liens
existing on such property at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to finance the
acquisition of such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that
no such Lien shall extend to or cover any properties of any character other than the
property being acquired, and no



32









 






such extension, renewal or replacement shall extend to or cover any properties
not theretofore subject to the Lien being extended, renewed or replaced,
provided further that the aggregate principal amount of the
indebtedness secured by the Liens referred to in this clause (ii) shall not exceed
$100,000,000 at any time outstanding,




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




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




     (v) assignments of the right to receive income or Liens in connection with any
Permitted Receivables Financing, to the extent permitted under Section 5.02(d)(iv),




     (vi) licenses, leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the business of
the Borrower and its Subsidiaries taken as a whole,




     (vii) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Borrower or any of its Subsidiaries
(other than a Receivables Subsidiary) in the ordinary course of business,




     (viii) Liens arising out of judgments or awards in circumstances not
constituting an Event of Default under Section 6.01 in respect of which the Borrower
or any of its Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review in respect of which there shall have been secured a
subsisting stay of execution pending such appeal or proceedings, provided
that the aggregate amount of all such judgments or awards does not exceed
$25,000,000 at any time outstanding,




     (ix) statutory, contractual and common law landlords’ liens under leases or
subleases permitted by this Agreement,




     (x) Liens (other than any Lien imposed by ERISA) (x) to secure the performance
of tenders, statutory obligations (other than excise taxes), surety, stay, customs
and appeal bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (y) arising by
virtue of deposits made in the ordinary course of business to secure liability for
premiums to insurance carriers, provided that the aggregate amount of
deposits at any time pursuant to sub-clauses (x) and (y) shall not exceed
$15,000,000 in the aggregate,




     (xi) any interest or title of a lessor, sublessor, licensee or licensor under
any lease or license agreement permitted by this Agreement,




     (xii) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business (excluding any general inventory
financing),




     (xiii) other Liens securing Debt (whether incurred by the Borrower or any of
its Subsidiaries) in an aggregate principal amount not to exceed $50,000,000 at any
time outstanding, and



33









 






     (xiv) the replacement, extension or renewal of any Lien permitted by clause
(iii) or (iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby.




     (b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise 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, any
Person, or permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge into or dispose of
assets to the Borrower, (iii) the Borrower may merge with any other Person so long
as the Borrower is the surviving corporation and (iv) any Subsidiary or Subsidiaries of the
Borrower may merge or consolidate with or into, or dispose of assets to, any other Person so
long as the assets of such Subsidiaries, in aggregate, do not constitute all or
substantially all of the assets of the Borrower or of the Borrower and its Subsidiaries
taken as a whole, provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.




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




     (d) Subsidiary Debt. Permit any of its Subsidiaries to create or suffer to
exist any Debt other than:




     (i) Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower,




     (ii) Debt existing on the Effective Date and described on Schedule 5.02(d)
hereto (the “Existing Debt”), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing Debt, provided
that the principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension, refunding
or refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing,




     (iii) Debt secured by Liens permitted by Section 5.02(a)(ii) or (xiii),




     (iv) Debt arising under Permitted Receivables Financings in an aggregate
Invested Amount not to exceed $250,000,000 at any time outstanding,




     (v) unsecured Debt incurred in the ordinary course of business aggregating for
all of the Borrower’s Subsidiaries not more than $35,000,000 at any one time
outstanding,




     (v) endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, and




     (vi) Debt under the Subsidiary Guaranty.




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




     (f) Payment Restrictions Affecting Subsidiaries. Directly or indirectly enter
into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its equity interests or repay or prepay
any Debt owed to, make loans or advances to, or otherwise transfer



34









 






assets to or invest in, the Borrower or any Subsidiary of the Borrower (whether through
a covenant restricting dividends, loans, asset transfers or investments, a financial
covenant or otherwise), except (i) any agreement in effect at the time such Subsidiary
becomes a Subsidiary of the Borrower, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Subsidiary of the Borrower, (ii) any customary
agreement restricting subletting or assignment of any lease governing a leasehold interest,
(iii) customary provisions restricting assignment of any licensing agreement entered into in
the ordinary course of business, (iv) customary provisions restricting the transfer of
assets subject to Liens permitted pursuant to Section 5.02(a), (v) under an document
evidencing a Permitted Receivables Financing and (vi) any encumbrance or restriction
existing under or by reason of applicable law.



          SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will:




     (a) Net Worth. Maintain an excess of Consolidated total assets over
Consolidated total liabilities of not less than $500,000,000.




     (b) Capitalization Ratio. Maintain a ratio of Consolidated Debt to the sum of
Consolidated Debt plus Consolidated shareholders’ equity of not greater than 0.60 to 1,
provided that Consolidated Debt for purposes of this covenant shall not include
obligations under letters of credit in an amount not to exceed $35,000,000 and shall not
include accrued interest.




     (c) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA as at the
end of any quarter for the four quarter period then ended of the Borrower and its
Subsidiaries to the sum of interest payable on, and amortization of debt discount in respect
of, all Debt during such period, in each case, by the Borrower and its Subsidiaries of not
less than 3.5 to 1.



ARTICLE VI

EVENTS OF DEFAULT




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




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




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




     (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d) (as it relates to the corporate existence of the Borrower),
(e), (h) or (i)(iii), 5.02(a), (c), (d), (e) or (f) or 5.03, or (ii) the Borrower shall fail
to perform or observe any other term, covenant or agreement contained in Section 5.01(i) if
such failure shall remain unremedied for 10 days after written notice thereof shall have
been given to the Borrower by the Agent or any Lender; or (iii) the Borrower shall fail to
perform or observe any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain unremedied for 20 days after
written notice thereof shall have been given to the Borrower by the Agent or any Lender; or




     (d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal (or, in the case of a
Hedge Agreement, with a termination value) of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of



35









 






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




     (e) Any of (x) the Borrower, (y) any of the Material Subsidiaries or (z) any
combination of Subsidiaries of the Borrower that, in aggregate own assets with a value of
15% or more of the total value of the assets of the Borrower and its Subsidiaries taken as a
whole, shall generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the Borrower or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or




     (f) Judgments or orders for the payment of money in excess of $25,000,000 in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and either (i)
unstayed enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; provided, however, that any such judgment or order
shall not be an Event of Default under this Section 6.01(f) if and for so long as (i) the
amount of such judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least “A” by A.M. Best Company, has been notified of, and has not disputed
the claim made for payment of, the amount of such judgment or order; or




     (g) Any non-monetary judgment or order shall be rendered against the Borrower or any of
its Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and
there shall be any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




     (h) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably
likely to incur liability in excess of $25,000,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or




     (i) any Loan Document after delivery thereof pursuant to Section 3.01 or 5.01(j) shall
for any reason cease to be valid and binding on or enforceable against any Loan Party party
to it, or any such Loan Party shall so state in writing; or




     (j) a Change in Control;



36









 




then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances (other than Advances by an Issuing Bank or a Lender pursuant to Section
2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.




          SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s
office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other
arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Required
Lenders; provided, however, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Federal Bankruptcy Code, the Borrower will
pay to the Agent on behalf of the Lenders in same day funds for deposit in the L/C Cash Collateral
Account an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding, without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. If at any time the Agent determines that any funds held
in the L/C Cash Collateral Account are subject to any right or claim of any Person other than the
Agent and the Lenders or that the total amount of such funds is less than the aggregate Available
Amount of all Letters of Credit, the Borrower will, forthwith upon demand by the Agent, pay to the
Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account, an amount
equal to the excess of (a) such aggregate Available Amount over (b) the total amount of funds, if
any, then held in the L/C Cash Collateral Account that the Agent determines to be free and clear of
any such right and claim. Upon the drawing of any Letter of Credit, to the extent funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the Issuing
Banks to the extent permitted by applicable law. After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrower hereunder and under the
Notes shall have been paid in full, the balance, if any, in such L/C Cash Collateral Account shall
be returned to the Borrower.



ARTICLE VII

THE AGENT




          SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Loan Documents as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes; provided,
however, that the Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to
give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.



          SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct.



37









 




Without limitation
of the generality of the foregoing, the Agent: (i) may treat the Lender that made any Advance as
the holder of the Debt resulting therefrom until the Agent receives and accepts an
Assumption Agreement entered into by an Assuming Lender as provided in Section 2.18 or 2.19, as the
case may be, or an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this Agreement or any
other Loan Document on the part of any Loan Party or the existence at any time of any Default or to
inspect the property (including the books and records) of any Loan Party; (v) shall not be
responsible to any Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier or telex) believed by it to
be genuine and signed or sent by the proper party or parties.




          SECTION 7.03. JPMorgan and Affiliates. With respect to its Commitment, the Advances
made by it and the Note issued to it, JPMorgan shall have the same rights and powers under this
Agreement any each other Loan Document as any other Lender and may exercise the same as though it
were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated,
include JPMorgan in its individual capacity. JPMorgan and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its Subsidiaries and any Person
who may do business with or own securities of the Borrower or any such Subsidiary, all as if
JPMorgan were not the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any of its Affiliates
relating to the Borrower or any of its Subsidiaries to the extent such information was obtained or
received in any capacity other than as Agent.



          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement or
any other Loan Document.



          SECTION 7.05. Indemnification. (a) Each Lender severally agrees to indemnify the
Agent (to the extent not reimbursed by the Borrower) from and against such Lender’s Ratable Share
of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted by the Agent under or any other Loan Document
(collectively, the “Indemnified Costs”), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement and the other Loan Documents, to the extent that the Agent is not reimbursed for such
expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.



          (b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature



38









 




whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by such Issuing Bank hereunder or in connection
herewith; provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) payable by the Borrower under Section 8.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower.




          (c) The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand
for its Ratable Share of any amount required to be paid by the Lenders to the Agent or such Issuing
Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse
the Agent or such Issuing Bank for its Ratable Share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the Agent or an Issuing Bank for such
other Lender’s Ratable Share of such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this
Section 8.05 shall survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.



          SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent with, so long as no Event of Default has occurred and is
continuing, the consent of the Borrower, which consent shall not be unreasonably withheld or
delayed. If no successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement and the other Loan
Documents. After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.



          SECTION 7.07. Other Agents. Each Lender hereby acknowledges that neither the
documentation agent nor any other Lender designated as any “Agent” on the signature pages hereof
has any liability hereunder other than in its capacity as a Lender.



ARTICLE VIII

MISCELLANEOUS




          SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the conditions specified in Section 3.01, (ii) change the number of Lenders or the
percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of the Advances or (z)
the aggregate Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder or (iii) amend this Section
8.01 and (b) no amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender that is directly affected by such amendment, waiver or consent, (i) increase the
Commitments of such Lender (other than as provided in Section 2.18), (ii) reduce the principal of,
or interest on, the Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender, or (iii) postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such Lender (other than
as provided in Section 2.19), and



39









 




provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Agent under this Agreement or any other
Loan Document and no amendment, waiver or consent shall, unless in writing and signed by the
Issuing Banks in addition to the Lenders required above to take such action, adversely affect the
rights or obligations of the Issuing Banks in their capacities as such under this Agreement.




          SECTION 8.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be in writing (including telecopier communication) and mailed, telecopied or
delivered, if to the Borrower, at its address at 1900 West Field Court, Lake Forest, Illinois
60045, Attention: Chief Financial Officer; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assumption Agreement or the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at 1111 Fannin, 10th Floor, Houston,
Texas 77002, Attention: Jeremy Jones (Telecopy No. (713) 750-2223; E-Mail Address:
jeremy.m.jones@jpmorgan.com), with a copy to 270 Park Avenue, 4th Floor, New York, New York 10017,
Attention: Peter S. Predun (Telecopy No. (212) 270-5100; E-Mail Address:
peter.predun@jpmorgan.com); or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to the Borrower and the
Agent. All such notices and communications shall, when mailed, telecopied or delivered, be
effective when deposited in the mails, telecopied or delivered, respectively, except that notices
and communications to the Agent pursuant to Article II, III or VII shall not be effective until
received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or any other Loan Document or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually executed counterpart
thereof.



          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.



          SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the other Loan Documents and the
other documents to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights
and responsibilities under this Agreement and the other Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement, the other Loan
Documents and the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in connection with the
enforcement of rights under this Section 8.04(a).



          (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement,
the other Loan Documents, any of the transactions contemplated herein or the actual or proposed use
of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any property of
the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the
Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or
expense resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case
of an investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, equityholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim for special, indirect, consequential or



40









 




punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise relating to this
Agreement, the other Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
the Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.



          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.



          SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of any Loan Party against any and all of the obligations of such Loan Party now or hereafter
existing under this Agreement, any Note held by such Lender and the other Loan Documents, whether
or not such Lender shall have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the applicable Loan Party
after any such set-off and application, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may have.



          SECTION 8.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of
the Lenders.



          SECTION 8.07. Assignments and Participations. (a) Each Lender may with the consent
of the Agent, each Issuing Bank and, so long as no Event of Default has occurred and is continuing,
the Borrower (which consents shall not be unreasonably withheld or delayed), and, if demanded by
the Borrower (following a demand by such Lender pursuant to Section 2.11, 2.14 or 2.20) upon at
least five Business Days’ notice to such Lender and the Agent, will assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, its Unissued Letter of Credit
Commitment, the Advances owing to it, its participations in Letters of Credit and the Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of its rights and obligations under this Agreement,
(ii) except in the case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than (x) in the case of an assignment of Revolving Credit Commitment,
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of an
assignment of Unissued Letter of Credit



41









 




Commitment, $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, in each case unless the Agent and, if no Default has occurred and is
continuing, the Borrower otherwise agree, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this
Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from either the Borrower or one or
more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued interest thereon to
the date of payment of such principal amount and all other amounts payable to such Lender under
this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment and Acceptance, together with any
Note subject to such assignment and a processing and recordation fee of $3,500 payable by the
parties to each such assignment, provided, however, that in the case of each
assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by
the Borrower except that no such recordation fee shall be payable in the case of an assignment made
at the request of the Borrower to an Eligible Assignee that is an existing Lender and (vii) no
consent of the Borrower, the Agent or any Issuing Bank shall be required in the case of an
assignment to any Affiliate of the assigning Lender or in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to
the extent any claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).




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



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



42









 





          (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be prima facie evidence of the correctness
thereof and binding for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior notice.



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



          (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Loan Parties furnished to such Lender by
or on behalf of the Loan Parties; provided that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve the confidentiality of
any Borrower Information relating to the Loan Parties received by it from such Lender.



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



          SECTION 8.08. Confidentiality. Neither the Agent nor any Lender may disclose to any
Person any confidential, proprietary or non-public information of the Loan Parties furnished to the
Agent or the Lenders by any Loan Party (such information being referred to collectively herein as
the “Borrower Information”), except that each of the Agent and each of the Lenders may
disclose Borrower Information (i) to its and its affiliates’ employees, officers, directors, agents
and advisors on a need to know basis (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Borrower Information and instructed to
keep such Borrower Information confidential on substantially the same terms as provided herein),
(ii) to the extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement, the other Loan Documents or the enforcement of
rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this Section 8.08, to any assignee or participant or prospective assignee or
participant, (vii) to the extent such Borrower Information (A) is or becomes generally available to
the public on a non-confidential basis other than as a result of a breach of this Section 8.08 by
the Agent or a Lender, or (B) is or becomes available to the Agent or such Lender on a
nonconfidential basis from a source other than the Loan Parties and (viii) with the consent of any
Loan Party, provided, that, prior to any disclosure pursuant to (ii) or (iii) above, the
disclosing party agrees that it will notify the Borrower as soon as practical in the event of any
such request for a disclosure, unless such notification shall be prohibited by applicable law or
legal process.



43









 





          SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.



          SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier or in .pdf or similar file shall be effective as delivery of a manually executed
counterpart of this Agreement.



          SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in such federal court. The Borrower hereby agrees and consents to
the service of process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 8.02. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents in the courts of any jurisdiction.



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



          SECTION 8.12. No Liability of the Issuing Banks. Neither the Agent, the Lenders nor
any Issuing Bank, nor any of their respective Affiliates or their respective officers, directors,
employees, agents and advisors, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in Section 2.06(b)),
or any error, omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the applicable Issuing Bank; provided
that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower
to the extent of any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on
the part of the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the
parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in
its sole discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit.



          SECTION 8.13. Patriot Act Notice. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies each borrower, guarantor or grantor (the “Loan Parties”), which information
includes the name and address of each Loan Party and other information that will allow such Lender
to identify such Loan Party in accordance with the Act.




44












 





          SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this
Agreement or the other Loan Documents or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.




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




	 	 	 	 	 
	 	PACKAGING CORPORATION OF AMERICA

 	 
	 	By  	/s/  Richard B. West
 	 
	 	 	Title: Senior  Vice President and Chief Financial Officer 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

   as Agent

 	 
	 	By  	/s/ Peter  S. Predum
 	 
	 	 	Title: Executive Director 	 
	 


Initial Lenders




	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By  	/s/  signature illegible
 	 
	 	 	Title: Vice President 	 
	 
	 	By  	                                                     /s/  signature illegible
 	 
	 	 	Title: Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By  	/s/ Peter  S. Predum
 	 
	 	 	Title: Executive Director 	 
	 
	 	UNION BANK OF CALIFORNIA, N.A.

 	 
	 	By  	/s/  Christine Davis
 	 
	 	 	Title: Vice President 	 
	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By  	/s/ Michael L. Letson, Jr.
 	 
	 	 	Title: Vice President 	 
	 	 	 	 



45









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By  	/s/  signature illegible
 	 
	 	 	Title: Director 	 
	 	 	 	 
	 
	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	By  	/s/ Thad D. Rasche
 	 
	 	 	Title: Director 	 
	 	 	 	 
	 
	 	THE NORTHERN TRUST COMPANY

 	 
	 	By  	/s/  signature illegible
 	 
	 	 	Title: Second Vice President 	 
	 	 	 	 
	 
	 	NATIONAL CITY BANK

 	 
	 	By  	Rachel M. Williamson
 	 
	 	 	Title: Vice President 	 
	 




46











 





SCHEDULE I

PACKAGING CORPORATION OF AMERICA

FIVE YEAR CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving Credit 	 	Letter of Credit	 	 	 	 
	Name of Initial Lender	 	Commitment	 	Commitment	 	Domestic Lending Office	 	Eurodollar Lending Office
	Bank of America, N.A.
	 	$	18,750,000	 	 	 	 	315 Montgomery St.	 	315 Montgomery St.
	 
	 	 	 	 	 	 	 	San Francisco, CA 94104	 	San Francisco,
CA 94104
	 
	 	 	 	 	 	 	 	Attn:  Anna Marie Finn	 	Attn:  Anna Marie Finn
	 
	 	 	 	 	 	 	 	T:  925 675-8312	 	T:  925 675-8312
	 
	 	 	 	 	 	 	 	F:  888 969-9238	 	F:  888 969-9238
	 
	 	 	 	 	 	 	 	 	 	 
	BMO Capital Markets 
	 	$	12,500,000	 	 	 	 	111 W. Monroe	 	111 W. Monroe
	Financing, Inc.
	 	 	 	 	 	 	 	Chicago, IL 60603	 	Chicago, IL 60603
	 
	 	 	 	 	 	 	 	Attn:  Blanca Velez	 	Attn:  Blanca Velez
	 
	 	 	 	 	 	 	 	T:  (312) 461-3775	 	T:  (312) 461-3775
	 
	 	 	 	 	 	 	 	F:  (312) 293-5283	 	F:  (312) 293-5283
	 
	 	 	 	 	 	 	 	 	 	 
	Deutsche Bank AG New 
	 	$	25,000,000	 	 	 	 	60 Wall Street	 	60 Wall Street
	York Branch
	 	 	 	 	 	 	 	New York, NY 10005	 	New York, NY 10005
	 
	 	 	 	 	 	 	 	Attn:  Joe Cusmai	 	Attn:  Joe Cusmai
	 
	 	 	 	 	 	 	 	T:  (201) 593-2202	 	T:  (201) 593-2202
	 
	 	 	 	 	 	 	 	F:  (201) 593-2313	 	F:  (201) 593-2313
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	25,000,000	 	$	35,000,000	 	1111 Fannin, 10th Floor	 	1111 Fannin, 10th Floor
	 
	 	 	 	 	 	 	 	Houston, TX 77002	 	Houston, TX 77002
	 
	 	 	 	 	 	 	 	Attn:  Jeremy Jones	 	Attn:  Jeremy Jones
	 
	 	 	 	 	 	 	 	(Telecopy T:	 	(Telecopy T:
	 
	 	 	 	 	 	 	 	F:  (713) 750-2223	 	F:  (713) 750-2223
	 
	 
	 	 	 	 	 	 	 	with a copy to:	 	with a copy to:
	 
	 	 	 	 	 	 	 	270 Park Avenue, 
4th Floor	 	270 Park Avenue, 

4th Floor
	 
	 	 	 	 	 	 	 	New York, NY 10017	 	New York, NY 10017
	 
	 	 	 	 	 	 	 	Attn:  Peter S. Predun	 	Attn:  Peter S. Predun
	 
	 	 	 	 	 	 	 	T:  (212) 270-7005	 	T:  (212) 270-7005
	 
	 	 	 	 	 	 	 	F:  (212) 270-5100	 	F:  (212) 270-5100
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving Credit 	 	Letter of Credit	 	 	 	 
	Name of Initial Lender	 	Commitment	 	Commitment	 	Domestic Lending Office	 	Eurodollar Lending Office
	National City Bank	 	$	12,500,000	 	 	 	 	One North Franklin	 	One North Franklin
	 	 	 	 	 	 	 	 	20th Floor	 	20th Floor
	 	 	 	 	 	 	 	 	Chicago, IL 60606	 	Chicago, IL 60606
	 	 	 	 	 	 	 	 	Attn:  Donna Benson	 	Attn:  Donna Benson
	 	 	 	 	 	 	 	 	T:  (312) 338-2207	 	T:  (312) 338-2207
	 	 	 	 	 	 	 	 	F:  (312) 782-7084	 	F:  (312) 782-7084
	 	 	 	 	 	 	 	 	 	 	 
	The Northern Trust Company	 	$	12,500,000	 	 	 	 	50 S. LaSalle Street	 	50 S. LaSalle Street
	 	 	 	 	 	 	 	 	Chicago, IL  60675	 	Chicago, IL  60675
	 	 	 	 	 	 	 	 	Attn:  Linda Honda	 	Attn:  Linda Honda
	 	 	 	 	 	 	 	 	T:  312 444-3532	 	T:  312 444-3532
	 	 	 	 	 	 	 	 	F:  312 444-3502	 	F:  312 444-3502
	 	 	 	 	 	 	 	 	 	 	 
	Union Bank of California, N.A.	 	$	25,000,000	 	 	 	 	1980 Saturn Street	 	1980 Saturn Street
	 	 	 	 	 	 	 	 	Monterey Park, CA  91755	 	Monterey Park, CA  91755
	 	 	 	 	 	 	 	 	Attn:  Shirley Davis	 	Attn:  Shirley Davis
	 	 	 	 	 	 	 	 	T:  323 720-2870	 	T:  323 720-2870
	 	 	 	 	 	 	 	 	F:  323 724-6198	 	F:  323 724-6198
	 	 	 	 	 	 	 	 	 	 	 
	Wachovia Bank, National Association	 	$	18,750,000	 	 	 	 	301 South College Street	 	301 South College Street
	 	 	 	 	 	 	 	 	Charlotte, NC  28288	 	Charlotte, NC  28288
	 	 	 	 	 	 	 	 	Attn:  Sherry Richards	 	Attn:  Sherry Richards
	 	 	 	 	 	 	 	 	T:  704 715-1459	 	T:  704 715-1459
	 	 	 	 	 	 	 	 	F:  704 374-2802	 	F:  704 374-2802
	 	 	 	 	 	 	 	 	 	 	 
	Total:	 	$	150,000,000	 	$	35,000,000	 	 	 	 







2 









 





SCHEDULE 2.01                   
         
EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	LOC Number	 	Date Issued	 	Beneficiary	 	Amount	 	 	Expiry Date
	Total Outstanding LOCs	 	 	 	$	19,372,561	 	 	7/31/2008
	 
	 	 	 	 	 	 	 	 	 





Note: Letters of Credit are issued by Bank of America (formerly LaSalle Bank)











 









 








     SCHEDULE 5.02(a)

EXISTING LIENS   



	 	 	 
	Collateral Description	 	Secured Instrument
	Receivables credit facility

	 	Receivables credit facility
	 
	 	 
	Mini flexo folder gluer at Miami, FL

	 	Capital lease
	 
	 	 
	Building in Edmore, MI

	 	Capital lease
	 
	 	 
	Woodyard at Valdosta, GA

	 	Capital lease effective 5/2008






 









 





     SCHEDULE 5.02(d)

EXISTING DEBT    




	 	 	 	 	 	 	 
	 	 	Due	 	 	 
	Description	 	Date	 	Amount	 
	Receivables credit facility
	 	10/3/2008	 	$	109,000,000	 






 









 






EXHIBIT A — FORM OF

PROMISSORY NOTE




	 	 	 

	U.S.$          
                   

	 	Dated:           , 200     






          FOR VALUE RECEIVED, the undersigned, Packaging Corporation of America, a Delaware corporation
(the “Borrower”), HEREBY PROMISES TO PAY to the order of             (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date
applicable to the Lender (each as defined in the Credit Agreement referred to below) the principal
sum of U.S.$[amount of the Lender’s Commitment in figures] or, if less, the aggregate principal
amount of the Advances made by the Lender to the Borrower pursuant to the Five Year Credit
Agreement dated as of April 15, 2008 among the Borrower, the Lender and certain other lenders
parties thereto, Deutsche Bank AG New York Branch, as syndication agent, Deutsche Bank Securities
Inc., as sole lead arranger and book manager, and JPMorgan Chase Bank, N.A., as Agent for the
Lender and such other lenders (as amended, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”; the terms defined therein being used herein as
therein defined) outstanding on such Termination Date.




          The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.




          Both principal and interest are payable in lawful money of the United States of America to
JPMorgan, as Agent, at 1111 Fannin, 10th Floor, Houston, Texas 77002, in same day funds. Each
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.




          This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.




	 	 	 	 	 
	 	PACKAGING CORPORATION OF AMERICA

 	 
	 	By  	
 	 
	 	 	          Title:       	 
	 	 	 	 



 









 






	 	 	 	 	 



ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Principal Paid	 	Unpaid Principal	 	Notation
	Date	 	Advance	 	or Prepaid	 	Balance	 	Made By
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 





2 









 





EXHIBIT B — FORM OF NOTICE OF

BORROWING




JPMorgan Chase Bank, N.A., as Agent

  for the Lenders parties

  to the Credit Agreement

  referred to below

  1111 Fannin, 10th Floor,

  Houston, Texas 77002




[Date]




          Attention: Loan and Agency Services



Ladies and Gentlemen:




          The undersigned, Packaging Corporation of America, refers to the Five Year Credit Agreement,
dated as of April 15, 2008 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”, the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto, Deutsche Bank AG New York
Branch, as syndication agent, Deutsche Bank Securities Inc., as sole lead arranger and book
manager, and JPMorgan Chase Bank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests
a Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the
Credit Agreement:





	 	(i)	 	The Business Day of the Proposed Borrowing is
                         , 200      .
	 
	 	(ii)	 	The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].
	 
	 	(iii)	 	The aggregate amount of the Proposed Borrowing is $_______________.





          [(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is _____ month[s].]




          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:




     (A) the representations and warranties contained in Section 4.01 of the Credit
Agreement are correct, before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date; and



 









 





     (B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.



	 	 	 	 	 
	 	Very truly yours,



PACKAGING CORPORATION OF AMERICA



	 
	 	By 	  	 
	 	 	Title:. 	 	 
	 	 	 



2 









 






	 	 	 	 	 



EXHIBIT C — FORM OF

ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Five Year Credit Agreement dated as of April 15, 2008 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) among Packaging Corporation of America, a Delaware corporation (the
“Borrower”), the Lenders (as defined in the Credit Agreement), Deutsche Bank AG New York
Branch, as syndication agent, Deutsche Bank Securities Inc., as sole lead arranger and book
manager, and JPMorgan Chase Bank, N.A., as Agent for the Lenders (the “Agent”). Terms
defined in the Credit Agreement are used herein with the same meaning.




          The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:




          1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement. After giving effect
to such sale and assignment, the Assignee’s Commitments and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.




          2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note, if any, held by the
Assignor [and requests that the Agent exchange such Note for a new Note payable to the order of
[the Assignee in an amount equal to the Commitment[s] assumed by the Assignee pursuant hereto or
new Notes payable to the order of the Assignee in an amount equal to the Commitment[s] assumed by
the Assignee pursuant hereto and] the Assignor in an amount equal to the Commitment[s] retained by
the Assignor under the Credit Agreement, [respectively,] as specified on Schedule 1 hereto.




          3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof 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 Acceptance; (ii) agrees that it will, independently and without
reliance upon the 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 Credit Agreement and the other Loan Documents; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit Agreement and the
other Loan Documents as are delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit Agreement are required to
be performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms required
under Section 2.14 of the Credit Agreement.




          4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.







1









 








          5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.




          6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal, interest, facility fees
and commission with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes for periods prior to
the Effective Date directly between themselves.




          7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.




          8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.




          IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.





2











 





Schedule 1

to

Assignment and Acceptance




	 	 	 	 	 

	Revolving Credit Facility:
	 	 	 	 
	 
	 	 	 	 
	Percentage interest assigned:
	 	 	%	 
	 
	 	 	 
	 
	 	 	 	 
	Assignee’s Revolving Credit Commitment:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Aggregate outstanding principal amount of Advances assigned:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignee:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignor:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Letter of Credit Facility:
	 	 	 	 
	 
	 	 	 	 
	Percentage interest assigned:
	 	 	%	 
	 
	 	 	 
	 
	 	 	 	 
	Assignee’s Letter of Credit Commitment:
	 	$	 	 
	 
	 	 	 




Effective Date*: _______________, 200_




	 	 	 	 	 
	 	[NAME OF ASSIGNOR], as Assignor

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	Dated: _______________, 200_



[NAME OF ASSIGNEE], as Assignee

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	Dated: _______________, 200_



Domestic Lending Office:

[Address]



Eurodollar Lending Office:

[Address]

 	 
	 	 	 
	 	 	 
	 	 	 
	 


Accepted [and Approved]* this






 




			
	*	 	This date should be no earlier than five
Business Days after the delivery of this Assignment and Acceptance to the
Agent.




3









 











	 	 	 	 	 
	____ day of _______________, 200_



JPMORGAN CHASE BANK, N.A., as Agent

 	 
	By  	 	 
	 	Title: 	 
	 	 	 
	[Approved this ____ day

of _______________, 200_



PACKAGING CORPORATION OF AMERICA

 	 
	By  	
 	]*
	 	Title: 	 
	 	 	 
	[Approved this ____ day

of _______________, 200_



[NAME OF ISSUING BANK]

 	 
	By  	 	]**
	 	Title: 	 
	 	 	 





 




			
	*	 	Required if the Assignee is an Eligible
Assignee solely by reason of clauses (a)(iii), (iv) or (v) or clause (b) of the
definition of “Eligible Assignee”.
	 
	**	 	Required if the Assignee becomes a Lender
under the Revolving Credit Facility and is an Eligible Assignee solely by
reason of clauses (a)(iii), (iv) or (v) of the definition of “Eligible
Assignee”.




4









 










EXHIBIT D — FORM OF

OPINION OF COUNSEL

FOR THE BORROWER




See Mayer Brown LLP Opinion.






 









 













	 	 	 

	April 16, 2008

	 	Mayer Brown LLP
	 

	 	1675 Broadway
	 

	 	New York, NY 10019
	 
	 	 
	 

	 	Main Tel (212) 506-2500
	 

	 	Main Fax (212) 262-1910
	 

	 	www.mayerbrownrowe.com






JPMorgan Chase Bank, N.A., as Administrative

   Agent under the Credit Agreement referred

   to below, and to each Lender under and as

   defined in such Credit Agreement






	 	Re:	 	Five Year Credit Agreement with Packaging Corporation of America




Ladies and Gentlemen:




     We have acted as special New York counsel for Packaging Corporation of America, a Delaware
corporation (the “Borrower”), in connection with the Five Year Credit Agreement dated as of
April 16, 2008 (the “Credit Agreement”) among the Borrower, various financial institutions
and JPMorgan Chase, N.A., as Administrative Agent. Capitalized terms used but not defined herein
have the respective meanings given to them in the Credit Agreement. This opinion letter is being
rendered to you at the request of our client pursuant to Section 3.01(h)(iv)(A) of the Credit
Agreement.



     We have examined copies, identified to our satisfaction, of the Credit Agreement and each Note
executed by the Borrower on the date hereof (together, the “Loan Documents”). In such
examination, we have assumed the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies and the authenticity of
the originals of such latter documents.



     For purposes of this opinion letter, we also have assumed, with your permission and without
independent investigation of any kind, the following: (i) the Credit Agreement has been duly
authorized, executed and delivered by each party thereto; (ii) the Credit Agreement is the legal,
valid and binding obligation of each party thereto (other than the Borrower, as to which we express
an opinion below), enforceable against each such party in accordance with its terms (subject to
customary qualifications such as those set forth after our opinions below); and (iii)
there are no agreements or understandings among the parties, written or oral, and no usage of
trade or course of prior dealing among the parties that would, in any such case, define, supplement
or qualify the terms of the Loan Documents.



     For purposes of this opinion letter, “Applicable Law” means those laws and regulations
of the United States of America and the State of New York that an attorney in the State of New



Brussels Charlotte Chicago Cologne Frankfurt Houston London Los Angeles Manchester New York Palo Alto Paris Washington, D.C.

Independent Mexico City Correspondent: Jauregui, Navarrete, Nader y Rojas, S.C.




Mayer, Brown, Rowe & Maw LLP operates in combination with our associated English limited liability partnership in the offices listed above.



 









 





April 16, 2008

Page 2



York exercising customary professional diligence would reasonably expect to be applicable to
transactions of the type contemplated by the Loan Documents. The term “Applicable Law” does not
include, and we express no opinion as to, (i) any law, rule, regulation, ordinance, code or similar
provision of law of any county, municipality or similar political subdivision of the State of New
York or any agency or instrumentality of any such county, municipality or similar political
subdivision or (ii) any law to which the Borrower may be subject as a result of the legal or
regulatory status of the Agent or any Lender or the involvement by the Agent or any Lender in the
transactions contemplated by the Credit Agreement .




     Upon the basis of the foregoing and the other assumptions and qualifications set forth herein,
we are of the opinion that:



     1. Each Loan Document constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.



     2. The execution, delivery and performance of the Loan Documents by the Borrower do not
violate, contravene or constitute a default under any provision of Applicable Law.



     3. No order, consent, approval, license, authorization or validation of or exemption by any
government or public body or authority is required under Applicable Law to authorize the execution,
delivery and performance by the Borrower of the Loan Documents.



     4. Assuming that, after applying the proceeds of the Loans, Margin Stock constitutes not more
than 25% of the value of all assets of the Borrower that are subject to any restriction in the Loan
Documents on sale, pledge or other disposal by the Borrower, the making of the credit extensions to
the Borrower under the Credit Agreement , and the use of the proceeds thereof, will not result in a
violation of Regulation T, U or X of the Board of Governors of the Federal Reserve System.



     Our opinions set forth above are subject to the following qualifications and limitations:




     A. The opinion expressed above as to the enforceability in accordance with its terms of
any Loan Document is subject to the exception that such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, equitable subordination, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the
availability of specific performance, injunctive relief or other equitable remedies, and by
general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law.




     B. We express no opinion as to any provision of any Loan Document that authorizes the
Agent or any Lender, or any purchaser of a participation interest from any party, to set off
or apply any deposit, indebtedness or other property against any participation interest.



 









 





April 16, 2008

Page 3





     C. We express no opinion as to the enforceability of any provision of any Loan Document
to the extent such provision purports to waive any objection to the laying of venue or any
claim that an action or proceeding has been brought in an inconvenient forum or purports to
waive the right to a jury trial. Without limiting the foregoing, we note that (i) under
NYCPLR §510 a New York State court may have discretion to transfer the place of trial and
(ii) under 28 U.S.C. §1404(a) a United States District Court has discretion to transfer an
action from one Federal court to another.




     D. We express no opinion as to: (i) provisions restricting access to legal or equitable
remedies; (ii) provisions that purport to establish evidentiary standards; (iii) provisions
relating to waivers, severability, contribution or delay or omission of enforcement of
rights or remedies; (iv) provisions purporting to convey rights to Persons other than
parties to the Loan Documents; (v) any provision that provides that a Loan Document may only
be amended, waived or modified in writing; (vi) any agreement by the Borrower to the subject
matter jurisdiction of a United States federal court or to be served with process by service
in a particular manner; (vii) whether any court outside the State of New York would honor
the choice of New York as the governing law of any Loan Document; or (viii) the effect of
the law of any jurisdiction other than the State of New York wherein any Lender may be
located or wherein the enforcement of any Loan Document may be sought that limits the rates
of interest, fees or other charges legally chargeable or collectible.




     E. We express no opinion as to compliance with, or any governmental or regulatory
filing, approval, authorization, license or consent required by or under, any Federal or
State (i) environmental law, (ii) antitrust law, (iii) taxation law, (iv) health or safety
law, (v) patent, trademark or copyright law, (vi) receivership or conservatorship law, (vii)
except as set forth in opinion paragraph 4, securities law, (viii) zoning, building,
permitting, land use or subdivision law, or (ix) labor, pension or employee benefit law, or
any rule or regulation relating to any of the foregoing.




     F. We express no opinion as to the enforceability of any indemnification provision of
the Credit Agreement insofar as such provision contravenes public policy or might require
indemnification or payments to any Person with respect to any litigation
determined adversely to such Person, any loss, cost or expense arising out of the
negligence or willful misconduct of any Person or any violation by any Person of statutory
duties or general principles of equity.




     G. We express no opinion as to the enforceability of any provision of any Loan Document
imposing penalties or forfeitures.




     H. We have made no examination of any financial or accounting matters, including the
ability of the Borrower to comply with any financial covenant or with any financial
limitation on indebtedness, and we express no opinion with respect to any such matter.



 









 







April 16, 2008

Page 4




     Members of our Firm are admitted to practice law in the State of New York, and we express no
opinion on any law other than the laws of the State of New York and the federal laws of the United
States of America, in each case to the extent specifically set forth herein.



     The opinions expressed herein are effective only as of the date of this opinion letter. We
assume no responsibility for updating this opinion letter as of any date subsequent to the date of
this opinion letter or for advising you of (i) any change with respect to any matter described in
this opinion letter or (ii) the discovery subsequent to the date of this opinion letter of factual
information not previously known to us pertaining to events occurring prior to the date of this
opinion letter.



     This opinion letter is rendered solely to you in connection with the transactions contemplated
by the Credit Agreement. This opinion letter may not be relied upon by you for any other purpose,
or relied upon by any other Person for any purpose, without (in each case) our prior written
consent; provided that persons who subsequently become Lenders in accordance with Section 8.07
of the Credit Agreement may rely on this opinion letter as of the date hereof as if this opinion
letter were addressed to them.



	 	 	 	 	 
	 	Very truly yours,



	 
	 	
 	 
	 	MAYER BROWN LLP	 




 











 










April 15, 2008




JPMorgan Chase Bank, N.A., as Administrative
  Agent
under the Credit Agreement referred to
  below,
and to each Lender under and as
  defined
in such Credit Agreement




     Re: Five Year Credit Agreement with Packaging Corporation of America


Ladies and Gentlemen:




     As General Counsel of Packaging Corporation of America, a Delaware corporation (the
“Borrower”), I have represented the Borrower in connection with the Five Year Credit
Agreement dated as of April 15, 2008 (the “Credit Agreement”) among the Borrower, various
financial institutions and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms
used but not defined herein have the respective meanings given to them in the Credit Agreement.
This opinion letter is being rendered to you pursuant to Section 3.01(h)(iv)(B) of the Credit
Agreement.



     In connection with this opinion letter, I, or members of my staff, have examined (i) the
Credit Agreement and each Note executed by the Borrower on the date hereof (together, the “Loan
Documents”) and (ii) originals, or copies certified or otherwise identified to my satisfaction,
of such (x) certificates of public officials, (y) certificates of officers and representatives of
the Borrower, and (z) other records, agreements, instruments and documents, and I have made such
other investigations, as I have deemed relevant or necessary as a basis for the opinions expressed
below. As to questions of fact material to such opinions, I have, when relevant facts were not
independently established by me, relied upon certificates and oral or written statements of the
Borrower or its officers or of public officials.



     I am a member of the bar of the State of Illinois and I do not express any opinion as to the
laws of any jurisdiction other than the applicable laws of the State of Illinois, the General
Corporation Law of the State of Delaware and, to the extent specifically referred to herein, the
federal laws of the United States.



1900 West Field Court • Lake Forest, Illinois 60045 • Tel 847-482-3000• www.packagingcorp.com




 









 








     Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the
opinion that:



     1. The Borrower is a corporation validly existing and in good standing under the laws of
the State of Delaware.



     2. Each Loan Document has been duly authorized, executed and delivered by the Borrower.



     3. The execution, delivery and performance by the Borrower of the Loan Documents are
within the corporate powers of the Borrower and do not violate, contravene or constitute a default
under (i) the Borrower’s certificate of incorporation or by-laws, (ii) any indenture, credit
agreement or other material contract binding upon the Borrower or its assets or (iii) any judgment,
injunction, order or decree applicable to the Borrower.



     4. There is no action, suit, investigation, litigation or other proceeding affecting the
Borrower or any of its Subsidiaries that is pending or, to my knowledge, threatened before any
court, governmental agency or arbitrator that could be reasonably expected to have a Material
Adverse Effect or that purports to adversely affect the legality, validity or enforceability of the
Loan Documents or the consummation of the transactions contemplated thereby.



     5. The Borrower is not an “investment company” or a company “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended.



     The opinions expressed herein are effective only as of the date of this opinion letter. I do
not assume responsibility for updating this opinion letter as of any date subsequent to the date of
this opinion letter, and I assume no responsibility for advising you of (i) any change with respect
to any matter described in this opinion letter or (ii) the discovery subsequent to the date of this
opinion letter of factual information not previously known to me pertaining to events occurring
prior to the date of this opinion letter.



 









 





     This opinion letter is furnished solely to you in connection with the transactions
contemplated by the Credit Agreement. This opinion letter may not be relied upon by you for any
other purpose, or relied upon by any other Person for any purpose, without (in each case) my prior
written consent; provided that Persons who subsequently become Lenders in accordance with Section
8.07 of the Credit Agreement may rely on this opinion letter as of the date hereof as if this
opinion letter were addressed to them.



	 	 	 	 	 
	 	Very truly yours,

 	 
	 	
 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



EXHIBIT E




FORM OF SUBSIDIARY GUARANTY




Dated as of _______________, 200_




From




THE GUARANTORS NAMED HEREIN




and




THE ADDITIONAL GUARANTORS REFERRED TO HEREIN




as Guarantors




in favor of




THE AGENT AND LENDERS REFERRED TO IN

THE CREDIT AGREEMENT REFERRED TO HEREIN





 









 









T A B L E  O F C O N T E N T S




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Section 1.

	 	Guaranty; Limitation of Liability
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Guaranty Absolute
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 3.

	 	Waivers and Acknowledgments
	 	 	2	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Subrogation
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Payments Free and Clear of Taxes, Etc.
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Representations and Warranties
	 	 	4	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Covenants
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Amendments, Guaranty Supplements, Etc.
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Notices, Etc.
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 10.

	 	No Waiver; Remedies
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 11.

	 	Right of Set-off
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 12.

	 	Indemnification
	 	 	6	 
	 
	 	 	 	 	 	 
	Section 13.

	 	Subordination
	 	 	6	 
	 
	 	 	 	 	 	 
	Section 14.

	 	Continuing Guaranty; Assignments under the Credit Agreement
	 	 	7	 
	 
	 	 	 	 	 	 
	Section 15.

	 	Execution in Counterparts
	 	 	7	 
	 
	 	 	 	 	 	 
	Section 16.

	 	Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
	 	 	7	 





Exhibit A — Guaranty Supplement




 









 








SUBSIDIARY GUARANTY




          SUBSIDIARY GUARANTY dated as of _______________, ____ made by the Persons listed on the signature
pages hereof under the caption “Subsidiary Guarantors” and the Additional Guarantors (as defined in
Section 8(b)) (such Persons so listed and the Additional Guarantors being, collectively, the
“Guarantors” and, individually, each a “Guarantor”) in favor of the Agent and the
Lenders (as defined in the Credit Agreement referred to below).



          PRELIMINARY STATEMENT. Packaging Corporation of America, a Delaware corporation (the
“Borrower”), is party to a Five Year Credit Agreement dated as of April 15, 2008 (as
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein
being used herein as therein defined) with certain Lenders party thereto, JPMorgan Chase Bank,
N.A., as Agent for such Lenders. Each Guarantor may receive, directly or indirectly, a portion of
the proceeds of the Advances under the Credit Agreement and will derive substantial direct and
indirect benefits from the transactions contemplated by the Credit Agreement. It is a condition to
the making of Advances and the issuance of Letters of Credit by the Lenders under the Credit
Agreement from time to time that each Material Subsidiary of the Borrower shall have executed and
delivered this Guaranty.



          NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration,
each Guarantor, jointly and severally with each other Guarantor, hereby agrees as follows:



          Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date
of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other
Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of
the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for
principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the “Guaranteed Obligations”), and agrees to pay any and
all expenses (including, without limitation, fees and expenses of counsel) incurred by the Agent or
any Lender in enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to the
Agent or any Lender under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.



          (b) Each Guarantor, and by its acceptance of this Guaranty, the Agent and each Lender,
hereby confirms that it is the intention of all such Persons that this Guaranty and the obligations
of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the obligations of each Guarantor hereunder. To effectuate the foregoing
intention, the Agent, the Lenders and the Guarantors hereby irrevocably agree that the obligations
of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will
result in the obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the
type referred to in Section 6.01(e) of the Credit Agreement or Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.



          (c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to the Agent or any Lender under this Guaranty or any other
guaranty, such Guarantor will contribute, to the maximum extent permitted by law and subject to the
limitation of liability provided in the preceding clause (b), such amounts to each other Guarantor
and each other guarantor so as to maximize the aggregate amount paid to the Agent and the Lenders
under or in respect of the Loan Documents.



          Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent
or any Lender with respect thereto. The obligations of each Guarantor under or in respect of this
Guaranty are independent of the



 









 







Guaranteed Obligations or any other obligations of any other Loan
Party under or in respect of the Loan Documents, and a separate action or actions may be brought
and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action
is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan
Party is joined in any such action or actions. The liability of each Guarantor under this Guaranty
shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following (except as shall be required by applicable law or statute and cannot be
waived):




     (a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Guaranteed Obligations or any other obligations of any other Loan Party
under or in respect of the Loan Documents, or any other amendment or waiver of or any
consent to departure from any Loan Document, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to any Loan
Party or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any collateral, or any
taking, release or amendment or waiver of, or consent to departure from, any other guaranty,
for all or any of the Guaranteed Obligations;




     (d) any manner of application of any collateral, or proceeds thereof, to all or any
of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral
for all or any of the Guaranteed Obligations or any other obligations of any Loan Party
under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;




     (f) any failure of the Agent or any Lender to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or hereafter known to the
Agent or such Lender (each Guarantor waiving any duty on the part of the Agent and the
Lenders to disclose such information);




     (g) the failure of any other Person to execute or deliver this Guaranty, any
Guaranty Supplement (as hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety with respect
to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the Agent or any
Lender that might otherwise constitute a defense available to, or a discharge of, any Loan
Party or any other guarantor or surety (other than payment).


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the
Borrower or any other Loan Party or otherwise, all as though such payment had not been made.




          Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any
of the Guaranteed Obligations and this Guaranty and any requirement that the Agent or any Lender
protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or
take any action against any Loan Party or any other Person or any collateral.



2









 





          (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.



          (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising
by reason of any claim or defense based upon an election of remedies by the Agent or any Lender
that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or
any other Person or any collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of such Guarantor hereunder.



          (d) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of
the Agent or any Lender to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance, properties or prospects of
any other Loan Party or any of its Subsidiaries now or hereafter known by the Agent or such Lender.



          (e) Each Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and that the waivers
set forth in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.



          Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any
other insider guarantor that arise from the existence, payment, performance or enforcement of such
Guarantor’s obligations under or in respect of this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any Lender against the Borrower, any other Loan
Party or any other insider guarantor or any collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without limitation, the right
to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in cash, all Letters of
Credit shall have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the Termination Date and (c) the
latest date of expiration or termination of all Letters of Credit, such amount shall be received
and held in trust for the benefit of the Agent and the Lenders, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered to the Agent in the
same form as so received (with any necessary endorsement or assignment) to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or
unmatured, in accordance with the terms of the Loan Documents, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. Subject to
the preceding provision of this Section 4, it is the intent of the parties that each Guarantor
shall have rights of subrogation in respect hereof, and if (i) any Guarantor shall make payment to
the Agent of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have expired or been
terminated, the Agent and the Lenders will, at such Guarantor’s request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.




          Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all payments made by any Guarantor under or in
respect of this Guaranty or any other Loan Document shall be made, in accordance with Section 2.13
of the Credit Agreement, free and clear of and without deduction for any and all present or future
Taxes. If any Guarantor shall be required by law to deduct any Taxes from or in respect of any sum
payable under or in respect of this Guaranty or any other Loan Document to the Agent or any Lender,
(i) the sum payable by such Guarantor shall be increased as may be necessary so that after such
Guarantor and the Agent have made all required deductions (including deductions applicable to
additional sums payable under this Section 5), the Agent or such



3









 







Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such Guarantor shall make
such deductions and (iii) such Guarantor shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.



          (b) In addition, each Guarantor agrees to pay any present or future Other Taxes that arise
from any payment made by or on behalf of such Guarantor under or in respect of this Guaranty or any
other Loan Document or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Guaranty and the other Loan Documents.



          (c) Each Guarantor will indemnify the Agent and each Lender for and hold it harmless
against the full amount of Taxes or Other Taxes, and for the full amount of taxes of any kind
imposed by any jurisdiction on amounts payable under this Section 5, imposed on or paid by the
Agent or such Lender, as the case may be, and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date the Agent or such Lender makes written demand therefor.



          (d) The obligations of each Guarantor under this Section are subject in all respects to
the limitations, qualifications and satisfaction of conditions set forth in Section 2.14 of the
Credit Agreement. Without limitation of the foregoing, the Lenders are subject to the obligations
set forth in Section 2.14 of the Credit Agreement to the same extent as if set forth herein.


          Section 6. Representations and Warranties. Each Guarantor hereby represents and warrants as follows:





     (a) Such Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization.




     (b) The execution, delivery and performance by such Guarantor of this Guaranty and
the consummation of the transactions contemplated hereby, are within such Guarantor’s
corporate powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) such Guarantor’s charter or by-laws, (ii) law, (iii) any indenture, deed of
trust, credit agreement or loan agreement binding on or affecting such Guarantor or (iv) any
other material agreement, contract or instrument binding on or affecting such Guarantor.




     (c) No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due execution,
delivery and performance by such Guarantor of this Guaranty. No authorization or approval
or other action by, and no notice to or filing with, any third party is required for the due
execution, delivery and performance by such Guarantor of this Guaranty, except to the extent
that failure to so obtain or so file could not reasonably be expected to have a Material
Adverse Effect.




     (d) This Guaranty has been duly executed and delivered by such Guarantor. This
Guaranty is the legal, valid and binding obligation of such Guarantor enforceable against
such Guarantor in accordance with its terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization or moratorium or similar laws affecting the rights of
creditors generally and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).




     (e) There are no conditions precedent to the effectiveness of this Guaranty that
have not been satisfied or waived.




     (f) Such Guarantor has, independently and without reliance upon the Agent or any
Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Guaranty and each other Loan Document to
which it is or is to be a party, and such Guarantor has established adequate means of
obtaining from each other Loan Party on a continuing



4









 







basis information pertaining to, and is
now and on a continuing basis will be completely familiar with, the business, condition
(financial or otherwise), operations, performance, properties and prospects of such other
Loan Party.



          Section 7. Covenants. Each Guarantor covenants and agrees that, so long as any part of the Guaranteed
Obligations shall remain unpaid, any Letter of Credit shall be outstanding or any Lender shall have
any Commitment shall be in effect, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth in the
Loan Documents on its or their part to be performed or observed or that the Borrower has agreed to
cause such Guarantor or such Subsidiaries to perform or observe.



          Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment or waiver of any provision of this Guaranty
and no consent to any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by the Agent and the Required Lenders, and then such waiver
or consent shall be effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, (a) reduce or limit the obligations of any Guarantor
hereunder, release any Guarantor hereunder or otherwise limit any Guarantor’s liability with
respect to the obligations owing to the Lenders under or in respect of the Loan Documents except as
provided in the next succeeding sentence or (b) change the number of Lenders or the percentage of
(x) the Commitments, (y) the aggregate unpaid principal amount of the Advances or (z) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder. Upon the sale, liquidation or dissolution of
a Guarantor to the extent permitted in accordance with the terms of the Loan Documents, such
Guarantor shall be automatically released from this Guaranty.



          (b) Upon the execution and delivery by any Person of a guaranty supplement in
substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”), (i) such Person
shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan Document to a
“Subsidiary Guarantor” shall also mean and be a reference to such Additional Guarantor, and
(ii) each reference herein to “this Guaranty”, “hereunder”, “hereof” or words of like import
referring to this Guaranty, and each reference in any other Loan Document to the “Subsidiary
Guaranty”, “thereunder”, “thereof” or words of like import referring to this
Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty
Supplement.



          Section 9. Notices, Etc. All notices and other communications provided for hereunder shall be in writing
(including telegraphic, telecopy or telex communication) and mailed, telegraphed, telecopied,
telexed or delivered to it, if to any Guarantor, addressed to it in care of the Borrower at the
Borrower’s address specified in Section 8.02 of the Credit Agreement, if to any Agent or any
Lender, at its address specified in Section 8.02 of the Credit Agreement, or, as to any party, at
such other address as shall be designated by such party in a written notice to each other party.
All such notices and other communications shall, when mailed, telegraphed, telecopied or telexed,
be effective when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any provision of this Guaranty or of
any Guaranty Supplement to be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.



          Section 10. No Waiver; Remedies. No failure on the part of the Agent or any Lender to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right 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.



          Section 11. Right of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent specified by Section 6.01 of the
Credit Agreement to authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 6.01, the Agent and each Lender and each of their respective Affiliates
is hereby authorized at any time and



5









 







from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by the Agent, such Lender or 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 the Loan Documents, irrespective of
whether the Agent or such Lender shall have made any demand under this Guaranty or any other Loan
Document and although such obligations may be unmatured. The Agent and each Lender agrees promptly
to notify such Guarantor after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of the Agent and each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other rights of set-off) that
the Agent, such Lender and their respective Affiliates may have.



          Section 12. Indemnification. (a) Without limitation on any other obligations of any Guarantor or remedies of
the Agent or the Lenders under this Guaranty, each Guarantor shall, to the fullest extent permitted
by law, indemnify, defend and save and hold harmless the Agent, each Lender and each of their
Affiliates and their respective officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against, and shall pay on demand, any and all claims,
damages, losses, liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party
in connection with or as a result of any failure of any Guaranteed Obligations to be the legal,
valid and binding obligations of any Loan Party enforceable against such Loan Party in accordance
with their terms.



          (b) Each Guarantor hereby also agrees that none of the Indemnified Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of the Guarantors or
any of their respective Affiliates or any of their respective officers, directors, employees,
agents and advisors, and each Guarantor hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit or any of the transactions contemplated by the
Credit Agreement.



          (c) Without prejudice to the survival of any of the other agreements of any Guarantor
under this Guaranty or any of the other Loan Documents, the agreements and obligations of each
Guarantor contained in Section 1(a) (with respect to enforcement expenses), the last sentence of
Section 2, Section 5 and this Section 12 shall survive the payment in full of the Guaranteed
Obligations and all of the other amounts payable under this Guaranty.


          Section 13. Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other
obligations owed to such Guarantor by each other Loan Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set
forth in this Section 13:





     (a) Prohibited Payments, Etc. Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor may receive payments from any other Loan
Party on account of the Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), however, unless the Agent
otherwise agrees, no Guarantor shall demand, accept or take any action to collect any
payment on account of the Subordinated Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Agent and
the Lenders shall be entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the commencement of a
proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding (“Post Petition Interest”)) before such Guarantor receives payment of any
Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to any other Loan Party), each Guarantor shall, if the Agent so requests,
collect, enforce and receive payments on



6









 







account of the Subordinated Obligations as trustee
for the Lenders and deliver such payments to the Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any necessary endorsements
or other instruments of transfer, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty.




     (d) Agent Authorization. After the occurrence and during the continuance
of any Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), the Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of each Guarantor, to
collect and enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations (including any and all Post
Petition Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Agent for application to the Guaranteed Obligations (including any
and all Post Petition Interest).



          Section 14. Continuing Guaranty; Assignments under the Credit Agreement. This Guaranty is a continuing
guaranty and shall (a) subject to the last sentence of Section 8(a), remain in full force and
effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii) the latest date of
expiration or termination of all Letters of Credit, (b) be binding upon the Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by the Lenders and their
successors, transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all or any portion of
its rights and obligations under the Credit Agreement (including, without limitation, all or any
portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other
Person, and such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as and to the extent provided in
Section 8.07 of the Credit Agreement. No Guarantor shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lenders.




          Section 15. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect
hereto may be executed in any number of counterparts and by different parties thereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Guaranty by telecopier shall be effective as delivery of an original
executed counterpart of this Guaranty.




          Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.




          (b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any judgment, and each
Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each Guarantor 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 any other Loan
Document shall affect any right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any other Loan Document in the courts of any jurisdiction.



          (c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or federal court.
Each Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any such court.



7









 





          (d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.



          IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered by
its officer thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GUARANTOR]

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[NAME OF GUARANTOR]

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 



8









 






	 	 	 	 	 



Exhibit A

To The

Subsidiary Guaranty




FORM OF SUBSIDIARY GUARANTY SUPPLEMENT




_________ __, ____




JPMorgan Chase Bank, N.A., as Agent

[Address of Agent]



Attention: _________




Five Year Credit Agreement dated as of April 15, 2008 among

Packaging Corporation of America, a Delaware corporation (the “Borrower”), the Lenders

party thereto and JPMorgan Chase Bank, N.A., as Agent



Ladies and Gentlemen:



          Reference is made to the above-captioned Credit Agreement and to the Subsidiary Guaranty referred
to therein (such Subsidiary Guaranty, as in effect on the date hereof and as it may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to time, together with
this Guaranty Supplement, being the “Subsidiary Guaranty”). The capitalized terms defined
in the Subsidiary Guaranty or in the Credit Agreement and not otherwise defined herein are used
herein as therein defined.




          Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all
obligations of each other Loan Party now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications, substitutions, amendments
or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premium, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such obligations being the “Guaranteed Obligations”),
and agrees to pay any and all expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent or any Lender in enforcing any rights under this Guaranty
Supplement, the Subsidiary Guaranty or any other Loan Document. Without limiting the generality of
the foregoing, the undersigned’s liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to the Agent or any Lender under
or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding involving such other
Loan Party.





          (b) The undersigned, and by its acceptance of this Guaranty Supplement, the Agent and each
Lender, hereby confirms that it is the intention of all such Persons that this Guaranty Supplement,
the Subsidiary Guaranty and the obligations of the undersigned hereunder and thereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty Supplement, the Subsidiary Guaranty and the
obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention,
the Agent, the Lenders and the undersigned hereby irrevocably agree that the obligations of the
undersigned under this Guaranty Supplement and the Subsidiary Guaranty at any time shall be limited
to the maximum amount as will result in the obligations of the undersigned under this Guaranty
Supplement and the Subsidiary Guaranty not constituting a fraudulent transfer or conveyance.



          (c) The undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to the Agent or any Lender under this Guaranty Supplement, the
Subsidiary



 









 







Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent
permitted by applicable law and subject to the limitations on liability set forth in Section 1(b)
above, such amounts to each other Guarantor and each other guarantor so as to maximize the
aggregate amount paid to the Agent and the Lenders under or in respect of the Loan Documents.



          Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date
first above written, to be bound as a Guarantor by all of the terms and conditions of the
Subsidiary Guaranty to the same extent as each of the other Guarantors thereunder. The undersigned
further agrees, as of the date first above written, that each reference in the Subsidiary Guaranty
to an “Additional Guarantor” or a “Guarantor” shall also mean and be a reference to the
undersigned, and each reference in any other Loan Document to a “Subsidiary Guarantor” or a
“Loan Party” shall also mean and be a reference to the undersigned.




          Section 3. Representations and Warranties. The undersigned hereby makes each
representation and warranty set forth in Section 6 of the Subsidiary Guaranty to the same extent as
each other Guarantor.




          Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a signature
page to this Guaranty Supplement by telecopier shall be effective as delivery of an original
executed counterpart of this Guaranty Supplement.




          Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty
Supplement shall be governed by, and construed in accordance with, the laws of the State of
New York.




          (b) The undersigned hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or any federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Guaranty Supplement, the Subsidiary
Guaranty or any of the other Loan Documents to which it is or is to be a party, or for recognition
or enforcement of any judgment, and the undersigned hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court. The undersigned
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 Supplement or the Subsidiary Guaranty or any other Loan Document shall
affect any right that any party may otherwise have to bring any action or proceeding relating to
this Guaranty Supplement, the Subsidiary Guaranty or any of the other Loan Documents to which it is
or is to be a party in the courts of any other jurisdiction.



          (c) The undersigned irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty Supplement, the
Subsidiary Guaranty or any of the other Loan Documents to which it is or is to be a party in any
New York State or federal court. The undersigned hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.



          (d) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.



	 	 	 	 	 
	 	Very truly yours,



[NAME OF ADDITIONAL GUARANTOR]

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




2