exv10w1






Exhibit 10.1




 

 










Credit Agreement




Dated as of October 29, 2009




among




The J.M. Smucker Company

Smucker Foods of Canada Co.,




The Guarantors from time to time parties hereto,




the Lenders from time to time parties hereto,




and




Bank of Montreal,

as Administrative Agent




 

 








BMO Capital Markets and Banc of America Securities, LLC,

 as Co-Lead Arrangers and Joint Book Runners




Bank of America, N.A.,

as Syndication Agent




and




National City Bank

JPMorgan Chase Bank, N.A.

Fifth Third Bank,

as Documentation Agents




 









 





Table of Contents




	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	 
	 	 	 	 	 	 
	Section 1.
	 	The Credit Facilities	 	 	1	 
	 
	Section 1.1.
	 	Revolving Credit Commitments	 	 	1	 
	Section 1.2.
	 	Increase in Revolving Credit Commitments	 	 	1	 
	Section 1.3.
	 	Letters of Credit	 	 	2	 
	Section 1.4.
	 	Applicable Interest Rates	 	 	6	 
	Section 1.5.
	 	Minimum Borrowing Amounts; Maximum Eurodollar Loans	 	 	10	 
	Section 1.6.
	 	Manner of Borrowing Loans and Designating Applicable Interest Rates	 	 	10	 
	Section 1.7.
	 	Swing Loans	 	 	12	 
	Section 1.8.
	 	Maturity of Loans	 	 	14	 
	Section 1.9.
	 	Prepayments	 	 	14	 
	Section 1.10.
	 	Default Rate	 	 	16	 
	Section 1.11.
	 	Evidence of Indebtedness	 	 	16	 
	Section 1.12.
	 	Funding Indemnity	 	 	17	 
	Section 1.13.
	 	Commitment Terminations	 	 	18	 
	Section 1.14.
	 	Substitution of Lenders	 	 	18	 
	Section 1.15.
	 	Defaulting Lenders	 	 	19	 
	 
	 	 	 	 	 	 
	Section 2.
	 	Fees	 	 	19	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	Fees	 	 	19	 
	 
	 	 	 	 	 	 
	Section 3.
	 	Place and Application of Payments	 	 	20	 
	 
	 	 	 	 	 	 
	Section 3.1.
	 	Place and Application of Payments	 	 	20	 
	 
	 	 	 	 	 	 
	Section 4.
	 	Guaranties	 	 	22	 
	 
	 	 	 	 	 	 
	Section 4.1.
	 	Guaranties	 	 	22	 
	Section 4.2.
	 	Further Assurances	 	 	22	 
	 
	 	 	 	 	 	 
	Section 5.
	 	Definitions; Interpretation	 	 	22	 
	 
	 	 	 	 	 	 
	Section 5.1.
	 	Definitions	 	 	22	 
	Section 5.2.
	 	Interpretation	 	 	39	 
	Section 5.3.
	 	Change in Accounting Principles	 	 	40	 
	 
	 	 	 	 	 	 
	Section 6.
	 	Representations and Warranties	 	 	40	 
	 
	 	 	 	 	 	 
	Section 6.1.
	 	Organization and Qualification	 	 	40	 
	Section 6.2.
	 	Subsidiaries	 	 	40	 
	Section 6.3.
	 	Authority and Validity of Obligations	 	 	40	 
	Section 6.4.
	 	Use of Proceeds; Margin Stock	 	 	41	 
	Section 6.5.
	 	Financial Reports	 	 	41	 






 









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	 
	 	 	 	 	 	 
	Section 6.6.
	 	No Material Adverse Change	 	 	42	 
	Section 6.7.
	 	Full Disclosure	 	 	42	 
	Section 6.8.
	 	Trademarks, Franchises, and Licenses	 	 	42	 
	Section 6.9.
	 	Governmental Authority and Licensing	 	 	42	 
	Section 6.10.
	 	Good Title	 	 	42	 
	Section 6.11.
	 	Litigation and Other Controversies	 	 	42	 
	Section 6.12.
	 	Taxes	 	 	43	 
	Section 6.13.
	 	Approvals	 	 	43	 
	Section 6.14.
	 	Investment Company	 	 	43	 
	Section 6.15.
	 	Benefit Plans	 	 	43	 
	Section 6.16.
	 	Compliance with Laws	 	 	44	 
	Section 6.17.
	 	OFAC	 	 	45	 
	Section 6.18.
	 	Other Agreements	 	 	45	 
	Section 6.19.
	 	Solvency	 	 	45	 
	Section 6.20.
	 	No Default	 	 	45	 
	 
	 	 	 	 	 	 
	Section 7.
	 	Conditions Precedent	 	 	46	 
	 
	 	 	 	 	 	 
	Section 7.1.
	 	All Credit Events	 	 	46	 
	Section 7.2.
	 	Initial Credit Event	 	 	46	 
	 
	 	 	 	 	 	 
	Section 8.
	 	Covenants	 	 	48	 
	 
	 	 	 	 	 	 
	Section 8.1.
	 	Maintenance of Business	 	 	48	 
	Section 8.2.
	 	Maintenance of Properties	 	 	48	 
	Section 8.3.
	 	Taxes and Assessments	 	 	48	 
	Section 8.4.
	 	Insurance	 	 	49	 
	Section 8.5.
	 	Financial Reports	 	 	49	 
	Section 8.6.
	 	Inspection	 	 	50	 
	Section 8.7.
	 	Borrowings and Guaranties	 	 	50	 
	Section 8.8.
	 	Liens	 	 	52	 
	Section 8.9.
	 	Acquisitions; Intercompany Investments, Loans and Advances	 	 	53	 
	Section 8.10.
	 	Mergers, Consolidations and Sales	 	 	53	 
	Section 8.11.
	 	Dividends and Certain Other Restricted Payments	 	 	54	 
	Section 8.12.
	 	Benefit Plans	 	 	55	 
	Section 8.13.
	 	Compliance with Laws	 	 	56	 
	Section 8.14.
	 	Compliance with OFAC Sanctions Programs	 	 	56	 
	Section 8.15.
	 	Burdensome Contracts With Affiliates	 	 	57	 
	Section 8.16.
	 	No Changes in Fiscal Year	 	 	57	 
	Section 8.17.
	 	Change in the Nature of Business	 	 	57	 
	Section 8.18.
	 	Use of Proceeds	 	 	58	 
	Section 8.19.
	 	No Restrictions	 	 	58	 
	Section 8.20.
	 	Financial Covenants	 	 	58	 
	Section 8.21.
	 	Other Covenants	 	 	58	 






-ii-









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	 
	 	 	 	 	 	 
	Section 9.
	 	Events of Default and Remedies	 	 	59	 
	 
	Section 9.1.
	 	Events of Default	 	 	59	 
	Section 9.2.
	 	Non-Bankruptcy Defaults	 	 	60	 
	Section 9.3.
	 	Bankruptcy Defaults	 	 	61	 
	Section 9.4.
	 	Collateral for Undrawn Letters of Credit	 	 	61	 
	Section 9.5.
	 	Notice of Default	 	 	62	 
	 
	 	 	 	 	 	 
	Section 10.
	 	Change in Circumstances	 	 	62	 
	 
	 	 	 	 	 	 
	Section 10.1.
	 	Change of Law	 	 	62	 
	Section 10.2.
	 	Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR or CDOR Fixed Rate	 	 	63	 
	Section 10.3.
	 	Increased Cost and Reduced Return	 	 	63	 
	Section 10.4.
	 	Lending Offices	 	 	65	 
	Section 10.5.
	 	Discretion of Lender as to Manner of Funding	 	 	65	 
	 
	 	 	 	 	 	 
	Section 11.
	 	The Administrative Agent	 	 	65	 
	 
	 	 	 	 	 	 
	Section 11.1.
	 	Appointment and Authorization of Administrative Agent	 	 	65	 
	Section 11.2.
	 	Administrative Agent and its Affiliates	 	 	65	 
	Section 11.3.
	 	Action by Administrative Agent	 	 	66	 
	Section 11.4.
	 	Consultation with Experts	 	 	66	 
	Section 11.5.
	 	Liability of Administrative Agent; Credit Decision	 	 	66	 
	Section 11.6.
	 	Indemnity	 	 	67	 
	Section 11.7.
	 	Resignation of Administrative Agent and Successor Administrative Agent	 	 	67	 
	Section 11.8.
	 	L/C Issuer and Swing Line Lender.	 	 	68	 
	Section 11.9.
	 	Designation of Additional Agents	 	 	68	 
	 
	 	 	 	 	 	 
	Section 12.
	 	The Guarantees	 	 	68	 
	 
	 	 	 	 	 	 
	Section 12.1.
	 	The Guarantees	 	 	68	 
	Section 12.2.
	 	Guarantee Unconditional	 	 	69	 
	Section 12.3.
	 	Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances	 	 	70	 
	Section 12.4.
	 	Subrogation	 	 	70	 
	Section 12.5.
	 	Waivers	 	 	71	 
	Section 12.6.
	 	Limit on Recovery	 	 	71	 
	Section 12.7.
	 	Stay of Acceleration	 	 	71	 
	Section 12.8.
	 	Benefit to Guarantors	 	 	71	 
	Section 12.9.
	 	Guarantor Covenants	 	 	71	 
	 
	 	 	 	 	 	 
	Section 13.
	 	Miscellaneous	 	 	71	 
	 
	 	 	 	 	 	 
	Section 13.1.
	 	Withholding Taxes	 	 	71	 
	Section 13.2.
	 	No Waiver, Cumulative Remedies	 	 	73	 
	Section 13.3.
	 	Non-Business Days	 	 	73	 
	Section 13.4.
	 	Documentary Taxes	 	 	73	 






-iii-









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	 
	 	 	 	 	 	 
	Section 13.5.
	 	Survival of Representations	 	 	73	 
	Section 13.6.
	 	Survival of Indemnities	 	 	73	 
	Section 13.7.
	 	Sharing of Set-Off	 	 	73	 
	Section 13.8.
	 	Notices	 	 	74	 
	Section 13.9.
	 	Counterparts	 	 	75	 
	Section 13.10.
	 	Successors and Assigns	 	 	75	 
	Section 13.11.
	 	Participants	 	 	75	 
	Section 13.12.
	 	Assignments	 	 	75	 
	Section 13.13.
	 	Amendments	 	 	78	 
	Section 13.14.
	 	Headings	 	 	78	 
	Section 13.15.
	 	Costs and Expenses; Indemnification	 	 	78	 
	Section 13.16.
	 	Set-off	 	 	79	 
	Section 13.17.
	 	Entire Agreement	 	 	80	 
	Section 13.18.
	 	Governing Law	 	 	80	 
	Section 13.19.
	 	Severability of Provisions	 	 	80	 
	Section 13.20.
	 	Excess Interest	 	 	80	 
	Section 13.21.
	 	Construction	 	 	81	 
	Section 13.22.
	 	Lender's and L/C Issuer 's Obligations Several	 	 	81	 
	Section 13.23.
	 	Currency	 	 	81	 
	Section 13.24.
	 	Submission to Jurisdiction; Waiver of Jury Trial	 	 	82	 
	Section 13.25.
	 	USA Patriot Act	 	 	82	 
	Section 13.26.
	 	Confidentiality	 	 	82	 
	 
	Signature Page
	 	 	 	 	S-1	 






	 	 	 	 	 
	Exhibit A

	 	—
	 	Notice of Payment Request
	Exhibit B

	 	—
	 	Notice of Borrowing
	Exhibit C

	 	—
	 	Notice of Continuation/Conversion
	Exhibit D-1

	 	—
	 	Revolving Note
	Exhibit D-2

	 	—
	 	Swing Note
	Exhibit E

	 	—
	 	Compliance Certificate
	Exhibit F

	 	—
	 	Additional Guarantor Supplement
	Exhibit G

	 	—
	 	Assignment and Acceptance
	Exhibit H

	 	—
	 	Commitment Amount Increase Request
	Schedule 1

	 	—
	 	Commitments
	Schedule 6.2

	 	—
	 	Subsidiaries
	Schedule 6.15(b)

	 	—
	 	Canadian Benefit Plans and Canadian Pension Plans
	Schedule 8.7

	 	—
	 	Existing Indebtedness and Guaranties







-iv-











 





Credit Agreement




     This Credit Agreement is entered into as of October 29, 2009, by and among The J.M. Smucker
Company, an Ohio corporation (the “U.S. Borrower”), Smucker Foods of Canada Co., a Nova Scotia
corporation (the “Canadian Borrower” and, together with the U.S. Borrower, individually a
“Borrower” and together the “Borrowers”), the direct and indirect Subsidiaries of the Borrower from
time to time party to this Agreement, as Guarantors, the several financial institutions from time
to time party to this Agreement, as Lenders, and Bank of Montreal, a Canadian chartered bank acting
through its Chicago branch, as Administrative Agent as provided herein. All capitalized terms used
herein without definition shall have the same meanings herein as such terms are defined in Section
5.1 hereof.



Preliminary Statement




     The Borrowers have requested, and the Lenders have agreed to extend, certain credit facilities
on the terms and conditions of this Agreement.



     Now, Therefore, in consideration of the mutual agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:



Section 1. The Credit Facilities.




     Section 1.1. Revolving Credit Commitments. (a) Subject to the terms and conditions hereof,
each Lender, by its acceptance hereof, severally agrees to make a loan or loans (individually a
“Revolving Loan” and collectively for all the Lenders the “Revolving Loans”) in U.S. Dollars to the
U.S. Borrower and in Canadian Dollars to the Canadian Borrower from time to time on a revolving
basis in an aggregate outstanding Original Dollar Amount up to the amount of such Lender’s
Revolving Credit Commitment, subject to any reductions thereof pursuant to the terms hereof, before
the Revolving Credit Termination Date. The sum of the aggregate Original Dollar Amount of
Revolving Loans, the aggregate Original Dollar Amount of Swing Loans, and the aggregate U.S. Dollar
Equivalent of all L/C Obligations at any time outstanding shall not exceed the Revolving Credit
Commitments in effect at such time. Each Borrowing of Revolving Loans shall be made ratably by the
Lenders in proportion to their respective Revolver Percentages. As provided in Section 1.6(a)
hereof, the U.S. Borrower may elect that each Borrowing of Revolving Loans be either U.S. Base
Rate Loans or Eurodollar Loans and the Canadian Borrower may elect that each Borrowing of Revolving
Loans be either CAD Base Rate Loans or CAD CDOR Loans. Revolving Loans may be repaid and the
principal amount thereof reborrowed before the Revolving Credit Termination Date, subject to the
terms and conditions hereof.



     Section 1.2. Increase in Revolving Credit Commitments. The Borrowers may, on any Business Day
prior to the Revolving Credit Termination Date, increase the aggregate amount of the Revolving
Credit Commitments by delivering a Commitment Amount Increase Request substantially in the form
attached hereto as Exhibit H or in such other form acceptable to the



 









 







Administrative Agent at least five (5) Business Days prior to the desired effective date of such
increase (the “Commitment Amount Increase”) identifying an additional Lender (or additional
Revolving Credit Commitments for existing Lender(s)) and the amount of its Revolving Credit
Commitment (or additional amount of its Revolving Credit Commitment(s)); provided, however, that
(a) any increase of the aggregate amount of the Revolving Credit Commitments to an amount in excess
of $500,000,000 will require the approval of the Required Lenders, (b) any increase of the
aggregate amount of the Revolving Credit Commitments shall be in an amount not less than
$25,000,000, (c) no Event of Default shall have occurred and be continuing at the time of the
request or on the effective date of the Commitment Amount Increase, (d) all representations and
warranties contained in Section 6 hereof shall be true and correct in all material respects at the
effective date of such Commitment Amount Increase, and (e) the Administrative Agent’s consent
(which shall not be unreasonably withheld) shall be required for any increase in the amount of an
existing Lender’s Revolving Credit Commitment or the addition of a new Lender. The effective date
of the Commitment Amount Increase shall be agreed upon by the Borrowers and the Administrative
Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s))
shall advance Revolving Loans in an amount sufficient such that after giving effect to its advance
each Lender shall have outstanding its Revolver Percentage of Revolving Loans. It shall be a
condition to such effectiveness that (i) if any Eurodollar Loans or CAD CDOR Loans are outstanding
under the Revolving Credit on the date of such effectiveness, such Eurodollar Loans or CAD CDOR
Loans shall be deemed to be prepaid on such date and the Borrowers shall pay any amounts owing to
the Lenders pursuant to Section 1.12 hereof and (ii) the Borrowers shall not have terminated any
portion of the Revolving Credit Commitments pursuant to Section 1.13 hereof. The Borrower agrees
to pay any reasonable expenses of the Administrative Agent relating to any Commitment Amount
Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to
increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be
increased without its consent thereto, and each Lender may at its option, unconditionally and
without cause, decline to increase its Revolving Credit Commitment.



     Section 1.3. Letters of Credit. (a) General Terms. Subject to the terms and conditions
hereof, as part of the Revolving Credit, each Borrower may request from the L/C Issuer standby and
commercial letters of credit (each a “Letter of Credit”) for the account of each Borrower or for
the account of a Borrower and one or more of its Subsidiaries in U.S. Dollars or Canadian Dollars
in the U.S. Dollar Equivalent of an aggregate undrawn face amount up to the L/C Sublimit. Each
Letter of Credit shall be issued by the L/C Issuer, but each Lender shall be obligated to reimburse
the L/C Issuer for such Lender’s Revolver Percentage of the amount of each drawing thereunder and,
accordingly, each Letter of Credit shall constitute usage of the Revolving Credit Commitment of
each Lender pro rata in an amount equal to its Revolver Percentage of the L/C Obligations then
outstanding.



     (b) Applications. At any time before the Revolving Credit Termination Date, the L/C Issuer
shall, at the request of either Borrower, issue one or more Letters of Credit in U.S. Dollars for
the account of the U.S. Borrower and its Subsidiaries or Canadian Dollars for the account of the
Canadian Borrower and its Subsidiaries, in a form satisfactory to the L/C Issuer, with expiration
dates no later than the earlier of 12 months from the date of issuance (or which are cancelable not
later than 12 months from the date of issuance and each renewal) or thirty



-2-









 







(30) days prior to the Revolving Credit Termination Date, in an aggregate face amount as set forth
above, upon the receipt of an application duly executed by such Borrower and, if such Letter of
Credit is for the account of one of its Subsidiaries, such Subsidiary for the relevant Letter of
Credit in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested
(each an “Application”). Notwithstanding anything contained in any Application to the contrary:
(i) the Borrowers shall pay fees in connection with each Letter of Credit as set forth in Section
2.1 hereof, (ii) except as otherwise provided in Section 1.9 or Section 1.15 hereof, unless an
Event of Default exists, the L/C Issuer will not call for the funding by any Borrower of any amount
under a Letter of Credit before being presented with a drawing thereunder, and (iii) if the L/C
Issuer is not timely reimbursed for the amount of any drawing under a Letter of Credit on the date
such drawing is paid, the obligation of the Borrower for whose account such Letter of Credit was
issued to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the
relevant Borrower hereby promises to pay) from and after the date such drawing is paid at a rate
per annum (x) if such Letter of Credit is denominated in U.S. Dollars, equal to the sum of the U.S.
Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed) plus the Applicable Margin for U.S. Base Rate
Loans, and (y) if such Letter of Credit is denominated in Canadian Dollars, equal to the sum of the
CAD Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as
the case may be, and the actual number of days elapsed) plus the Applicable Margin for CAD Base
Rate Loans. If the L/C Issuer issues any Letter of Credit with an expiration date that is
automatically extended unless the L/C Issuer gives notice that the expiration date will not so
extend beyond its then scheduled expiration date, unless the Administrative Agent or the Required
Lenders instruct the L/C Issuer otherwise, the L/C Issuer will give such notice of non-renewal
before the time necessary to prevent such automatic extension if before such required notice date:
(i) the expiration date of such Letter of Credit if so extended would be after the Revolving Credit
Termination Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) an Event of
Default exists and either the Administrative Agent or the Required Lenders (with notice to the
Administrative Agent) have given the L/C Issuer instructions not to so permit the extension of the
expiration date of such Letter of Credit. The L/C Issuer agrees to issue amendments to the
Letter(s) of Credit increasing the amount, or extending the expiration date, thereof at the request
of the Borrower for whose account such Letter of Credit was issued subject to the conditions of
Section 7 hereof and the other terms of this Section 1.3. Notwithstanding anything contained
herein to the contrary, the L/C Issuer shall be under no obligation to issue, extend or amend any
Letter of Credit if a default of any Lender’s obligations to fund under Section 1.3(c) exists or
any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into
arrangements with the Borrowers or such Lender satisfactory to the L/C Issuer to eliminate the L/C
Issuer’s risk with respect to such Lender.



     (c) The Reimbursement Obligations. Subject to Section 1.3(b) hereof, the obligation of the
Borrowers to reimburse the L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement
Obligation”) shall be governed by the Application related to such Letter of Credit, except that
reimbursement shall be made by no later than 1:00 p.m. (Chicago time) on the date when each drawing
is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or before
11:00 a.m. (Chicago time) on the date when such drawing is to be paid or, if notice of such drawing
is given to the Borrower for whose account such Letter of Credit



-3-









 







was issued after 11:00 a.m. (Chicago time) on the date when such drawing is to be paid, by no later
than 1:00 p.m. (Chicago time) on the following Business Day, in immediately available funds at the
Administrative Agent’s principal office in Chicago, Illinois, or such other office as the
Administrative Agent may designate in writing to the Borrower (who shall thereafter cause to be
distributed to the L/C Issuer such amount(s) in like funds). If a Borrower does not make any such
reimbursement payment on the date due and the Participating Lenders fund their participations
therein in the manner set forth in Section 1.3(e) below, then all payments thereafter received by
the Administrative Agent in discharge of any of the relevant Reimbursement Obligations shall be
distributed in accordance with Section 1.3(e) below.



     (d) Obligations Absolute. Each Borrower’s obligation to reimburse L/C Obligations as provided
in subsection (c) of this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement and the relevant Application
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii)
payment by the L/C Issuer under a Letter of Credit against presentation of a draft or other
document that does not strictly comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, any Borrower’s obligations hereunder. None of the Administrative Agent,
the Lenders, or the L/C Issuer 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 the preceding
sentence), 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 L/C Issuer; provided that the
foregoing shall not be construed to excuse the L/C Issuer from liability to the relevant Borrower
to the extent of any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by any
Borrower that are caused by the L/C Issuer’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 L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C
Issuer 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 L/C Issuer 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.



-4-









 





     (e) The Participating Interests. Each Lender (other than the Lender acting as L/C Issuer in
issuing the relevant Letter of Credit), by its acceptance hereof, severally agrees to purchase from
the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Lender (a “Participating
Lender”), an undivided percentage participating interest (a “Participating Interest”), to the
extent of its Revolver Percentage, in each Letter of Credit issued by, and each Reimbursement
Obligation owed to, the L/C Issuer. Upon any failure by a Borrower to pay any Reimbursement
Obligation at the time required on the date the related drawing is to be paid, as set forth in
Section 1.3(c) above, or if the L/C Issuer is required at any time to return to a Borrower or to a
trustee, receiver, liquidator, custodian or other Person any portion of any payment of any
Reimbursement Obligation, each Participating Lender shall, not later than the Business Day it
receives a certificate in the form of Exhibit A hereto from the L/C Issuer (with a copy to the
Administrative Agent) to such effect, if such certificate is received before 2:00 p.m. (Chicago
time), or not later than 2:00 p.m. (Chicago time) the following Business Day, if such certificate
is received after such time, pay to the Administrative Agent for the account of the L/C Issuer an
amount equal to such Participating Lender’s Revolver Percentage of such unpaid or recaptured
Reimbursement Obligation together with interest on such amount accrued from the date the related
payment was made by the L/C Issuer to the date of such payment by such Participating Lender at a
rate per annum equal to: (i) from the date the related payment was made by the L/C Issuer to the
date two (2) Business Days after payment by such Participating Lender is due hereunder, (x) if such
Letter of Credit is denominated in U.S. Dollars, the Federal Funds Rate for each such day, and (y)
if such Letter of Credit is denominated in Canadian Dollars, the cost to the Administrative Agent
of funding such amount, and (ii) from the date two (2) Business Days after the date such payment is
due from such Participating Lender to the date such payment is made by such Participating Lender,
(x) if such Letter of Credit is denominated in U.S. Dollars, the U.S. Base Rate in effect for each
such day, and (y) if such Letter of Credit is denominated in Canadian Dollars, the CAD Base Rate in
effect for each such day. Each such Participating Lender shall thereafter be entitled to receive
its Revolver Percentage of each payment received in respect of the relevant Reimbursement
Obligation and of interest paid thereon, with the L/C Issuer retaining its Revolver Percentage
thereof as a Lender hereunder. The several obligations of the Participating Lenders to the L/C
Issuer under this Section 1.3 shall be absolute, irrevocable, and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to
payment which any Participating Lender may have or have had against any Borrower, the L/C Issuer,
the Administrative Agent, any Lender or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of any Revolving Credit Commitment of any Lender, and
each payment by a Participating Lender under this Section 1.3 shall be made without any offset,
abatement, withholding or reduction whatsoever.



     (f) Indemnification. The Participating Lenders shall, to the extent of their respective
Revolver Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrowers)
against any cost, expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful
misconduct) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued
by it. The obligations of the Participating Lenders under this Section 1.3(f) and all other parts
of this Section 1.3 shall survive termination of this Agreement and of all Applications,
Letters of Credit, and all drafts and other documents presented in connection with drawings
thereunder.



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     (g) Manner of Requesting a Letter of Credit. Each Borrower shall provide at least three (3)
Business Days’ advance written notice to the Administrative Agent of each request for the issuance
of a Letter of Credit for its account, such notice in each case to be accompanied by an Application
for such Letter of Credit properly completed and executed by such Borrower and, in the case of an
extension or amendment or an increase in the amount of a Letter of Credit, a written request
therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case,
together with the fees called for by this Agreement. The Administrative Agent shall promptly
notify the L/C Issuer of the Administrative Agent’s receipt of each such notice (and the L/C Issuer
shall be entitled to assume that the conditions precedent to any such issuance, extension,
amendment or increase have been satisfied unless notified to the contrary by the Administrative
Agent or the Required Lenders) and the L/C Issuer shall promptly notify the Administrative Agent
and the Lenders of the issuance of the Letter of Credit so requested.



     (h) Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by written
agreement among the Borrowers, the Administrative Agent and the successor L/C Issuer. The
Administrative Agent shall notify the Lenders of any such replacement of the L/C Issuer. At the
time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued
for the account of the replaced L/C Issuer. From and after the effective date of any such
replacement (i) the successor L/C Issuer shall have all the rights and obligations of the L/C
Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “L/C Issuer “ shall be deemed to refer to such successor or to any
previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall
require. After the replacement of a L/C Issuer hereunder, the replaced L/C Issuer shall remain a
party hereto and shall continue to have all the rights and obligations of a L/C Issuer under this
Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Letters of Credit.



     Section 1.4. Applicable Interest Rates. (a) U.S. Base Rate Loans. Each U.S. Base Rate Loan
made or maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366
days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from
the date such Loan is advanced, or created by conversion from a Eurodollar Loan, until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable
Margin plus the U.S. Base Rate from time to time in effect, payable by the relevant Borrower on
each Interest Payment Date and at maturity (whether by acceleration or otherwise), provided that
interest shall not accrue on any Loan (or portion thereof) for the day such Loan (or portion) is
paid as provided in Section 3.1.



     “U.S. Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the
rate of interest announced or otherwise established by the Administrative Agent from time to time
as its prime commercial rate, or its equivalent, for U.S. Dollar loans to borrowers located in the
United States as in effect on such day, with any change in the U.S. Base Rate resulting from a
change in said prime commercial rate to be effective as of the date of the relevant change in said
prime commercial rate (it being acknowledged and agreed that such rate may not be the



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Administrative Agent’s best or lowest rate), (b) the sum of (i) the rate determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the next higher 1/100 of
1%) of the rates per annum quoted to the Administrative Agent at approximately 10:00 a.m. (Chicago
time) (or as soon thereafter as is practicable) on such day (or, if such day is not a Business Day,
on the immediately preceding Business Day) by two or more Federal funds brokers selected by the
Administrative Agent for sale to the Administrative Agent at face value of Federal funds in the
secondary market in an amount equal or comparable to the principal amount for which such rate is
being determined, plus (ii) 1/2 of 1%, and (c) the LIBOR Quoted Rate for such day plus 1.00%. As
used herein, the term “LIBOR Quoted Rate” means, for any day, the rate per annum equal to the
quotient of (i) the rate per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a one-month interest
period which appears on the LIBOR01 Page as of 11:00 a.m. (London, England time) on such day (or,
if such day is not a Business Day, on the immediately preceding Business Day) divided by (ii) one
(1) minus the Eurodollar Reserve Percentage.



     (b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a Lender shall bear interest
during each Interest Period it is outstanding (computed on the basis of a year of 360 days and
actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or
continued, or created by conversion from a U.S. Base Rate Loan, until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the
Adjusted LIBOR applicable for such Interest Period, payable by the relevant Borrower on each
Interest Payment Date and at maturity (whether by acceleration or otherwise), provided that
interest shall not accrue on any Loan (or portion thereof) for the day such Loan (or portion) is
paid as provided in Section 3.1.



     “Adjusted LIBOR” means, for any Borrowing of Eurodollar Loans, a rate per annum determined in
accordance with the following formula:



	 	 	 	 	 	 
	Adjusted LIBOR

	 	=
	 	LIBOR	 
	 

	 	 	 	 	 
	 

	 	 	 	1 - Eurodollar Reserve Percentage	 






     “Eurodollar Reserve Percentage” means the maximum reserve percentage, expressed as a decimal,
at which reserves (including, without limitation, any emergency, marginal, special, and
supplemental reserves) are imposed by the Board of Governors of the Federal Reserve System (or any
successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or any successor
thereto), subject to any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this definition, the
relevant Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under Regulation D. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in
any such reserve percentage.



     “LIBOR” means, for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR Index
Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) at which deposits in U.S. Dollars in



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immediately available funds are offered to the Administrative Agent at 11:00 a.m. (London,
England time) two (2) Business Days before the beginning of such Interest Period by three (3) or
more major banks in the interbank eurodollar market selected by the Administrative Agent for
delivery on the first day of and for a period equal to such Interest Period and in an amount equal
or comparable to the principal amount of the Eurodollar Loan scheduled to be made as part of such
Borrowing.



     “LIBOR Index Rate” means, for any Interest Period, the rate per annum (rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a period equal to such Interest Period, which appears on the LIBOR01 Page as of 11:00
a.m. (London, England time) on the day two (2) Business Days before the commencement of such
Interest Period.



     “LIBOR01 Page” means the display designated as “LIBOR01 Page” on the Reuters Service (or such
other page as may replace the LIBOR01 Page on that service or such other service as may be
nominated by the British Bankers’ Association as the information vendor for the purpose of
displaying British Bankers’ Association Interest Settlement Rates for U.S. Dollar deposits).



     (c) CAD Base Rate Loans. Each CAD Base Rate Loan made or maintained by a Lender shall bear
interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual
days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, or
created by conversion from a CAD CDOR, until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of the Applicable Margin plus the CAD Base Rate from time to time
in effect, payable by the relevant Borrower on each Interest Payment Date and at maturity (whether
by acceleration or otherwise), provided that interest shall not accrue on any Loan (or portion
thereof) for the day such Loan (or portion) is paid as provided in Section 3.1.



     “CAD Base Rate” means, for any day, the greater of (i) the per annum rate of interest
announced from time to time by the Administrative Agent as its reference rate then in effect for
determining rates of interest on Canadian Dollar Loans to its customers in Canada and designated as
its prime rate; and (ii) the 30 day CAD Fixed Rate plus one percent (1%) per annum. Each change in
the CAD Base Rate shall be effective immediately from and after such change.



     (d) CAD CDOR Loans. Each CAD CDOR Loan made or maintained by a Lender shall bear interest
during each Interest Period it is outstanding (computed on the basis of a year of 365/366 days and
actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or
continued, or created by conversion from a CAD Base Rate Loan, until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the
CAD Fixed Rate applicable for such Interest Period, payable by the relevant Borrower on each
Interest Payment Date and at maturity (whether by acceleration or otherwise), provided that
interest shall not accrue on any Loan (or portion thereof) for the day such Loan (or portion) is
paid as provided in Section 3.1.



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     “CAD Fixed Rate” shall mean, with respect to a CAD CDOR Loan, for any Interest Period, the
rate per annum determined by the Administrative Agent by reference to the average of the rates
displayed on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealer
Association, Inc. definitions, as amended from time to time), or such other page as may replace
such page on such screen for the purpose of displaying Canadian interbank bid rates for Canadian
Dollar bankers’ acceptances) applicable to Canadian Dollar bankers’ acceptances (on a three hundred
sixty-five (365) day basis) with a term comparable to such Interest Period as of 10:00 A.M.
(Eastern time) on the first day of such Interest Period (as adjusted by the Administrative Agent
after 10:00 A.M. (Eastern time) to reflect any error in a posted rate or in the posted average
annual rate of interest). If, for any reason, the rates on the Reuters Screen CDOR Page are
unavailable, then CAD Fixed Rate means the rate of interest determined by the Administrative Agent
that is equal to the rate (rounded upwards to the nearest basis point) quoted by the Canadian
Reference Bank as its discount rate for purchase of Canadian Dollar bankers’ acceptances in an
amount substantially equal to such CAD CDOR Loan with a term comparable to such Interest Period as
of 10:00 A.M. (Eastern time). No adjustment shall be made to account for the difference between
the number of days in a year on which the rates referred to in this definition are based and the
number of days in a year on the basis of which interest is calculated in this Agreement.



     (e) Rate Determinations. The Administrative Agent shall determine each interest rate
applicable to the Loans and the Reimbursement Obligations hereunder based on the foregoing, and its
determination thereof shall be conclusive and binding except in the case of manifest error. The
Original Dollar Amount of each Loan denominated in Canadian Dollars shall be determined or
redetermined, as applicable, (i) in the case of CAD CDOR Loans, effective as of the first day of
each Interest Period applicable to such Loan, and (ii) in the case of CAD Base Rate Loans,
effective as of the last day of each calendar month.



     (f) Interest Act (Canada). For purposes of disclosure pursuant to the Interest Act (Canada),
the annual rates of interest or fees to which the rates of interest or fees provided in this
Agreement and the other Loan Documents (and stated herein or therein, as applicable, to be computed
on the basis of a three hundred sixty (360) day year or any other period of time less than a
calendar year) are equivalent to the rates so determined multiplied by the actual number of days in
the applicable calendar year and divided by three hundred sixty (360) or such other period of time,
respectively.



     (g) Adjustments. If, as a result of any restatement of or other adjustment to the financial
statements of the U.S. Borrower or for any other reason, the U.S. Borrower or the Lenders determine
that (i) the Total Leverage Ratio as calculated by the U.S. Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher
pricing for such period, the U.S. Borrower shall immediately and retroactively be obligated to pay
to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to the U.S. Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent or any Lender), an amount equal to the excess of
the amount of interest that should have been paid for such period over the amount of interest
actually paid for such period. This paragraph
shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under
Section 1.10 or under Section 9.



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     Section 1.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans. Each Borrowing of U.S. Base
Rate Loans shall be in an amount not less than $1,000,000 or such greater amount which is an
integral multiple of $100,000. Each Borrowing of CAD Base Rate Loans shall be in an amount not
less than CAD$1,000,000 or such greater amount which is an integral multiple of CAD$100,000. Each
Borrowing of CAD CDOR Loans shall be in an amount not less than CAD$1,000,000 or such greater
amount which is an integral multiple of $1,000,000. Each Borrowing of Eurodollar Loans advanced,
continued or converted shall be in an amount equal to $1,000,000 or such greater amount which is an
integral multiple of $1,000,000. Without the Administrative Agent’s consent, there shall not be
more than ten (10) Borrowings of Eurodollar Loans outstanding hereunder and ten (10) Borrowings of
CAD CDOR Loans.



     Section 1.6. Manner of Borrowing Loans and Designating Applicable Interest Rates. (a) Notice
to the Administrative Agent. The Borrower requesting a Borrowing of Loans shall give notice to the
Administrative Agent by no later than 10:00 a.m. (Chicago time): (i) at least three (3) Business
Days before the date on which such Borrower requests the Lenders to advance a Borrowing of
Eurodollar Loans (ii) on the date such Borrower requests the Lenders to advance a Borrowing of U.S.
Base Rate Loans or CAD Base Rate Loans, and (iii) at least three (3) Business Days before the date
on which such Borrower requests the Lenders to advance a Borrowing of CAD CDOR Loans. The Loans
included in each Borrowing shall bear interest initially at the type of rate specified in such
notice of a new Borrowing. Thereafter, subject to the terms and conditions hereof, the relevant
Borrower may from time to time elect to change or continue the type of interest rate borne by each
Borrowing obtained by it hereunder or, subject to the minimum amount requirement for each
outstanding Borrowing set forth in Section 1.5 hereof, a portion thereof, as follows: (i) if such
Borrowing is of Eurodollar Loans, on the last day of the Interest Period applicable thereto, such
Borrower may continue part or all of such Borrowing as Eurodollar Loans or convert part or all of
such Borrowing into U.S. Base Rate Loans, (ii) if such Borrowing is of U.S. Base Rate Loans, on any
Business Day, such Borrower may convert all or part of such Borrowing into Eurodollar Loans for an
Interest Period or Interest Periods specified by such Borrower, (iii) if such Borrowing is of CAD
Base Rate Loans, on any Business Day, such Borrower may convert all or part of such Borrowing into
CAD CDOR Loans for an Interest Period or Interest Periods specified by such Borrower, and (iv) if
such Borrowing is of CAD CDOR Loans, on the last day of the Interest Period applicable thereto,
such Borrower may continue part or all of such Borrowing as CAD CDOR Loans or convert part or all
of such Borrowing into CAD Base Rate Loans. The Borrowers shall give all such notices requesting
the advance, continuation or conversion of a Borrowing to the Administrative Agent by telephone,
telecopy, or other telecommunication device acceptable to the Administrative Agent (which notice
shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing),
substantially in the form attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C (Notice
of Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative
Agent. Notice of the continuation of a Borrowing of Eurodollar Loans for an additional Interest
Period or of the conversion of part or all of a Borrowing of U.S. Base Rate Loans into Eurodollar
Loans must be given by no later than 10:00 a.m. (Chicago time) at least



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three (3) Business Days before the date of the requested continuation or conversion. Notice of the
continuation of a Borrowing of CAD CDOR Loans for an additional Interest Period or of the
conversion of part or all of a Borrowing of CAD Base Rate Loans into CAD CDOR Loans must be given
by no later than 10:00 a.m. (Chicago time) at least three (3) Business Days before the date of the
requested continuation or conversion. All such notices concerning the advance, continuation or
conversion of a Borrowing shall specify the date of the requested advance, continuation or
conversion of a Borrowing (which shall be a Business Day), the amount of the requested Borrowing to
be advanced, continued or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period
applicable thereto. Upon written notice to the Borrowers by the Administrative Agent or the
Required Lenders (or, in the case of an Event of Default under Section 9.1(j) or 9.1(k) hereof with
respect to any Borrower, without notice), no Borrowing of Eurodollar Loans or CAD CDOR Loans shall
be advanced, continued, or created by conversion if any Event of Default then exists. Each
Borrower agrees that the Administrative Agent may rely on any such telephonic, telecopy, or other
telecommunication notice given by any person the Administrative Agent in good faith believes is an
Authorized Representative without the necessity of independent investigation, and in the event any
such notice by telephone conflicts with any written confirmation such telephonic notice shall
govern if the Administrative Agent has acted in good faith reliance thereon.



     (b) Notice to the Lenders. The Administrative Agent shall give prompt telephonic, telecopy or
other telecommunication notice to each Lender of any notice from a Borrower received pursuant to
Section 1.6(a) above and, if such notice requests the Lenders to make Eurodollar Loans, the
Administrative Agent shall give notice to such Borrower and each Lender by like means of the
interest rate applicable thereto promptly after the Administrative Agent has made such
determination and, if such Borrowing is denominated in Canadian Dollars, shall give notice by such
means to the Borrowers and each Lender of the Original Dollar Amount thereof.



     (c) Borrower’s Failure to Notify. If the U.S. Borrower fails to give notice pursuant to
Section 1.6(a) above of the continuation or conversion of any outstanding principal amount of a
Borrowing of Eurodollar Loans before the last day of its then current Interest Period within the
period required by Section 1.6(a) and such Borrowing is not prepaid in accordance with Section
1.9(a), such Borrowing shall automatically be converted into a Borrowing of U.S. Base Rate Loans.
If the Canadian Borrower fails to give notice pursuant to Section 1.6(a) above of the continuation
or conversion of any outstanding principal amount of a Borrowing of CAD CDOR Loans before the last
day of its then current Interest Period within the period required by Section 1.6(a) and such
Borrowing is not prepaid in accordance with Section 1.9(a), such Borrowing shall automatically be
converted into a Borrowing of CAD Base Rate Loans. In the event a Borrower fails to give notice
pursuant to Section 1.6(a) above of a Borrowing equal to the amount of a Reimbursement Obligation
owed by it and has not notified the Administrative Agent by 12:00 noon (Chicago time) on the day
such Reimbursement Obligation becomes due that it intends to repay such Reimbursement Obligation
through funds not borrowed under this Agreement, such Borrower shall be deemed to have requested
(i) in the case of the U.S. Borrower, a Borrowing of U.S. Base Rate Loans under the Revolving
Credit (or, at the option of the Swing Line Lender, under the Swing Line) on such day in the amount
of the Reimbursement Obligation then due, which Borrowing shall be applied to pay the Reimbursement
Obligation



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then due, and (ii) in the case of the Canadian Borrower, a Borrowing of CAD Base Rate Loans under
the Revolving Credit (or, at the option of the Swing Line Lender, under the Swing Line) on such day
in the amount of the Reimbursement Obligation then due.



     (d) Disbursement of Loans. Not later than 1:00 p.m. (Chicago time) on the date of any
requested advance of a new Borrowing, subject to Section 7 hereof, each Lender shall make available
its Loan comprising part of such Borrowing in funds immediately available at the principal office
of the Administrative Agent in Chicago, Illinois (or at such other location as the Administrative
Agent shall designate). The Administrative Agent shall make the proceeds of each new Borrowing
available to the relevant Borrower at the Administrative Agent’s principal office in Chicago,
Illinois in the case of Borrowings denominated in U.S. Dollars or Toronto, Ontario, Canada in the
case of Borrowings denominated in Canadian Dollars (or in each case at such other location as the
Administrative Agent shall designate), by depositing or wire transferring such proceeds to the
credit of such Borrower’s Designated Disbursement Account or as the relevant Borrower and the
Administrative Agent may otherwise agree.



     (e) Administrative Agent Reliance on Lender Funding. Unless the Administrative Agent shall
have been notified by a Lender prior to (or, in the case of a Borrowing of U.S. Base Rate Loans, by
1:00 p.m. (Chicago time) on) the date on which such Lender is scheduled to make payment to the
Administrative Agent of the proceeds of a Loan (which notice shall be effective upon receipt) that
such Lender does not intend to make such payment, the Administrative Agent may assume that such
Lender has made such payment when due and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to the relevant Borrower the proceeds of
the Loan to be made by such Lender and, if any Lender has not in fact made such payment to the
Administrative Agent, such Lender shall, on demand, pay to the Administrative Agent the amount made
available to the relevant Borrower attributable to such Lender together with interest thereon in
respect of each day during the period commencing on the date such amount was made available to the
relevant Borrower and ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to: (i) from the date the related advance was made
by the Administrative Agent to the date two (2) Business Days after payment by such Lender is due
hereunder, the Federal Funds Rate for each such day or, in the case of a Loan denominated in
Canadian Dollars, the cost to the Administrative Agent of funding the amount it advanced to fund
such Lender’s Loan, as determined by the Administrative Agent, and (ii) from the date two (2)
Business Days after the date such payment is due from such Lender to the date such payment is made
by such Lender, the U.S. Base Rate in effect for each such day or, in the case of a Loan
denominated in Canadian Dollars, the CAD Base Rate in effect for each such day. If such amount is
not received from such Lender by the Administrative Agent immediately upon demand, the Borrower
that received the proceeds of such Loan will, on demand, repay to the Administrative Agent the
proceeds of the Loan attributable to such Lender with interest thereon at a rate per annum equal to
the interest rate applicable to the relevant Loan, but without such payment being considered a
payment or prepayment of a Loan under Section 1.12 hereof so that such Borrower will have no
liability under such Section with respect to such payment.



     Section 1.7. Swing Loans. (a) Generally. Subject to the terms and conditions hereof, as part
of the Revolving Credit, the Swing Line Lender may, in its discretion, make loans in



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U.S. Dollars to the U.S. Borrower under the Swing Line (individually a “Swing Loan” and collectively the
“Swing Loans”) which shall not at any time outstanding exceed the Swing Line Sublimit. Swing Loans
may be availed of from time to time and borrowings thereunder may be repaid and used again during
the period ending on the Revolving Credit Termination Date. Each Swing Loan shall be in a minimum
amount of $250,000 or such greater amount which is an integral multiple of $50,000.




     (b) Interest on Swing Loans. Each Swing Loan shall bear interest until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the U.S. Base Rate plus the
Applicable Margin for U.S. Base Rate Loans under the Revolving Credit as from time to time in
effect (computed on the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days elapsed). Interest on each Swing Loan shall be due and payable by the U.S. Borrower
on each Interest Payment Date and at maturity (whether by acceleration or otherwise).



     (c) Requests for Swing Loans. The U.S. Borrower shall give the Administrative Agent prior
notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on the date upon
which such Borrower requests that any Swing Loan be made to it, of the amount and date of such
Swing Loan. Subject to the terms and conditions hereof, the proceeds of each Swing Loan extended
to a Borrower shall be deposited or otherwise wire transferred to the U.S. Borrower’s Designated
Disbursement Account or as the U.S. Borrower, the Administrative Agent, and the Swing Line Lender
may otherwise agree. Anything contained in the foregoing to the contrary notwithstanding, the
undertaking of the Swing Line Lender to make Swing Loans shall be subject to all of the terms and
conditions of this Agreement (provided that the Swing Line Lender shall be entitled to assume that
the conditions precedent to an advance of any Swing Loan have been satisfied unless notified to the
contrary by the Administrative Agent or the Required Lenders).



     (d) Refunding Loans. In its sole and absolute discretion, the Swing Line Lender may at any
time, on behalf of the U.S. Borrower (and the U.S. Borrower hereby irrevocably authorizes the Swing
Line Lender to act on its behalf for such purpose) and with notice to the U.S. Borrower and the
Administrative Agent, request each Lender to make a Revolving Loan in the form of a U.S. Base Rate
Loan in an amount equal to such Lender’s Revolver Percentage of the amount of the Swing Loans
outstanding on the date such notice is given. Unless an Event of Default described in Section
9.1(j) or 9.1(k) exists with respect to the U.S. Borrower, regardless of the existence of any other
Event of Default, each Lender shall make the proceeds of its requested Revolving Loan available to
the Administrative Agent for the account of the Swing Line Lender, in immediately available funds
in U.S. Dollars, at the Administrative Agent’s office in Chicago, Illinois (or such other location
designated by the Administrative Agent), before 12:00 Noon (Chicago time) on the Business Day
following the day such notice is given. The Administrative Agent shall promptly remit the proceeds
of such Borrowing to the Swing Line Lender to repay the outstanding Swing Loans.



     (e) Participations. If any Lender refuses or otherwise fails to make a Revolving Loan when
requested by the Swing Line Lender pursuant to Section 1.7(d) above (because an Event of Default
described in Section 9.1(j) or 9.1(k) exists with respect to the U.S. Borrower or



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otherwise), such Lender will, by the time and in the manner such Revolving Loan was to have been
funded to the Swing Line Lender, purchase from the Swing Line Lender an undivided participating
interest in the outstanding Swing Loans in an amount equal to its Revolver Percentage of the
aggregate principal amount of Swing Loans that were to have been repaid with such Revolving Loans.
Each Lender that so purchases a participation in a Swing Loan shall thereafter be entitled to
receive its Revolver Percentage of each payment of principal received on the Swing Loan and of
interest received thereon accruing from the date such Lender funded to the Swing Line Lender its
participation in such Loan. The several obligations of the Lenders under this Section shall be
absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not
be subject to any set-off, counterclaim or defense to payment which any Lender may have or have had
against any Borrower, any other Lender, or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of the Revolving Credit Commitments of any Lender, and
each payment made by a Lender under this Section shall be made without any offset, abatement,
withholding, or reduction whatsoever.



     Section 1.8. Maturity of Loans. (a) Scheduled Payments of Revolving Loans. Each Revolving
Loan, both for principal and interest not sooner paid, shall mature and be due and payable by the
Borrower that borrowed such Loan on the Revolving Credit Termination Date.



     (b) Swing Loans. Each Swing Loan, both for principal and interest not sooner paid, shall
mature and be due and payable by the U.S. Borrower on the Revolving Credit Termination Date.



     Section 1.9. Prepayments. (a) Optional. Any Borrower may prepay in whole or in part (but, if
in part, then: (i) if such Borrowing is of U.S. Base Rate Loans, in an amount not less than
$1,000,000 or such greater amount which is an integral multiple of $100,000, (ii) if such Borrowing
is of Eurodollar Loans, in an amount not less than $5,000,000 or such greater amount which is an
integral multiple of $1,000,000, (iii) if such Borrowing is of CAD Base Rate Loans, in Canadian
Dollars in an amount not less than CAD$1,000,000 or such greater amount which is an integral
multiple of CAD$100,000, (iv) if such Borrowing is of CAD CDOR Loans, in Canadian Dollars in an
amount not less than CAD$5,000,000 or such greater amount which is an integral multiple of
CAD$1,000,000, and (v) in each case, in an amount such that the minimum amount required for a
Borrowing pursuant to Section 1.5 and 1.7 hereof remains outstanding) any Borrowing of Eurodollar
Loans on the last day of the Interest Period therefor and at any other time upon (A) three (3)
Business Days prior notice by such Borrower to the Administrative Agent, (B) in the case of a
Borrowing of U.S. Base Rate Loans, notice delivered by such Borrower to the Administrative Agent no
later than 10:00 a.m. (Chicago time) on the date of prepayment, (C) in the case of any Borrowing of
CAD CDOR Loans on the last day of the Interest Period therefor and at any other time upon three (3)
Business Days prior notice by such Borrower to the Administrative Agent, or (D) in the case of a
Borrowing of CAD Base Rate Loans, notice delivered by such Borrower to the Administrative Agent no
later than 10:00 a.m. (Chicago time) on the date of prepayment (or, in any case of (A) through (D)
above, such shorter period of time then agreed to by the Administrative Agent), such prepayment to
be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar
Loans, CAD



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CDOR Loans or Swing Loans, accrued interest thereon to the date fixed for prepayment plus any
amounts due the Lenders under Section 1.12 hereof.



     (b) Mandatory. (i) Each Borrower shall, on each date the Revolving Credit Commitments are
reduced pursuant to Section 1.13 hereof, prepay its own Revolving Loans, Swing Loans, and, if
necessary, prefund its own L/C Obligations by the aggregate amount, if any, necessary to reduce the
sum of the aggregate principal amount of Revolving Loans, Swing Loans, and L/C Obligations then
outstanding to the amount to which the Revolving Credit Commitments have been so reduced.



     (ii) If at any time (A) for any reason other than fluctuations in currency exchange rates, the
sum of the aggregate Original Dollar Amount of Revolving Loans, the aggregate Original Dollar
Amount of Swing Loans, and the aggregate U.S. Dollar Equivalent of all L/C Obligations then
outstanding shall be in excess of the Revolving Credit Commitments then in effect, and (B) solely
as a result of fluctuations in currency exchange rates, the sum of the aggregate Original Dollar
Amount of Revolving Loans, the aggregate Original Dollar Amount of Swing Loans, and the aggregate
U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of 105% of the
Revolving Credit Commitments then in effect, each Borrower shall (1) immediately without notice or
demand in the circumstances described in clause (A) and (2) within 3 Business Days after notice
from the Administrative Agent in the circumstances described in clause (B), pay over the amounts
which in aggregate equal such excess to the Administrative Agent for the account of the Lenders as
and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied
to each such Borrower’s applicable Revolving Loans and Swing Loans until paid in full with any
remaining balance to be held by the Administrative Agent in the Collateral Account as security for
each Borrower’s Obligations owing with respect to such Borrower’s Letters of Credit.



     (iii) Unless the U.S. Borrower prepaying a Loan otherwise directs, prepayments of Loans under
this Section 1.9(b) in U.S. Dollars shall be applied first to Borrowings of U.S. Base Rate Loans
made to such Borrower until payment in full thereof with any balance applied to Borrowings of
Eurodollar Loans made to such Borrower in the order in which their Interest Periods expire, and
prepayments by the Canadian Borrower of Loans under this Section 1.9(b) in Canadian Dollars shall
be applied first to Borrowings of CAD Base Rate Loans made to such Borrower until payment in full
thereof with any balance applied to Borrowings of CAD CDOR Loans made to such Borrower in the order
in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall
be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar
Loans, CAD CDOR Loans or Swing Loans, accrued interest thereon to the date of prepayment together
with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations
shall be made in accordance with Section 9.4 hereof.



     (c) Any amount of Revolving Loans and Swing Loans paid or prepaid before the Revolving Credit
Termination Date may, subject to the terms and conditions of this Agreement, be borrowed, repaid
and borrowed again.



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     Section 1.10. Default Rate. Notwithstanding anything to the contrary contained herein, while
any Event of Default exists or after acceleration, each Borrower shall pay, after written notice
from the Administrative Agent, interest (after as well as before entry of judgment thereon to the
extent permitted by law) on the principal amount of all Loans and Reimbursement Obligations owed by
it under the Loan Documents, and letter of credit fees from the date of such Event of Default or
acceleration at a rate per annum equal to:




     (a) for any U.S. Base Rate Loan or any Swing Loan bearing interest based on the U.S.
Base Rate, the sum of 2.0% plus the Applicable Margin plus the U.S. Base Rate from time to
time in effect;




     (b) for any Eurodollar Loan, the sum of 2.0% plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period applicable thereto
and, thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for
U.S. Base Rate Loans plus the U.S. Base Rate from time to time in effect;




     (c) for any Reimbursement Obligation, the sum of 2.0% plus the amounts due under
Section 1.3 with respect to such Reimbursement Obligation;




     (d) for any Letter of Credit, the sum of 2.0% plus the letter of credit fee due under
Section 2.1 with respect to such Letter of Credit;




     (e) for any CAD Base Rate Loan or any Swing Loan bearing interest based on the CAD Base
Rate, the sum of 2% plus the Applicable Margin plus the CAD Base Rate from time to time in
effect; and




     (f) for any CAD CDOR Loan, the sum of 2.0% plus the rate of interest in effect thereon
at the time of such default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for CAD
Base Rate Loans plus the CAD Base Rate from time to time in effect;


provided, however, that in the absence of acceleration or a Principal Payment Default (as defined
below), any interest adjustments pursuant to this Section shall only be made at the election of the
Required Lenders, with written notice to the Borrowers. If any principal amount of any Loan or
Reimbursement Obligation is not paid when due (a “Principal Payment Default”) such principal amount
shall bear interest at the rates specified in subsections (a) through (f) above until paid in full.
While any Event of Default exists or after acceleration, interest as adjusted under this Section
1.10 shall be paid on demand of the Administrative Agent at the request or with the consent of the
Required Lenders.




     Section 1.11. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made to such Borrower by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to time hereunder.



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     (b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the type thereof and the Interest Period with respect thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from each Borrower and each Lender’s share thereof.



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



     (d) Any Lender may request that its Loans to each Borrower be evidenced by a promissory note
or notes of such Borrower in the forms of Exhibit D-1 (in the case of its Revolving Loans and
referred to herein as a “Revolving Note”), or D-2 (in the case of its Swing Loans and referred to
herein as a “Swing Note”), as applicable (the Revolving Notes, and Swing Note being hereinafter
referred to collectively as the “Notes” and individually as a “Note”). In such event, each
Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender or its
registered assigns. Thereafter, the Loans evidenced by such Note or Notes and interest thereon
shall at all times (including after any assignment pursuant to Section 13.12) be represented by one
or more Notes of the relevant Borrower payable to the order of the payee named therein or any
assignee pursuant to Section 13.12, except to the extent that any such Lender or assignee
subsequently returns any such Note to the relevant Borrower for cancellation and requests that such
Loans once again be evidenced as described in subsections (a) and (b) above.



     Section 1.12. Funding Indemnity. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund or maintain any Eurodollar
Loan or CAD CDOR Loan or the relending or reinvesting of such deposits or amounts paid or prepaid
to such Lender) as a result of:




     (a) any payment, prepayment or conversion of a Eurodollar Loan or CAD CDOR Loan on a
date other than the last day of its Interest Period,




     (b) any failure (because of a failure to meet the conditions of Section 7 or otherwise)
by a Borrower to borrow or continue a Eurodollar Loan or CAD CDOR Loan, or to convert a U.S.
Base Rate Loan into a Eurodollar Loan on the date specified in a notice given pursuant to
Section 1.6(a) hereof or to convert a CAD Base Rate Loan into a CAD CDOR Loan on the date
specified in a notice given pursuant to Section 1.6(a) hereof,




     (c) any failure by a Borrower to make any payment of principal on any Eurodollar Loan
or CAD CDOR Loan when due (whether by acceleration or otherwise), or



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     (d) any acceleration of the maturity of a Eurodollar Loan or CAD CDOR Loan as a result
of the occurrence of any Event of Default hereunder,


then, upon the demand of such Lender, the relevant Borrower shall pay to such Lender such amount as
will reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the relevant Borrower, with a copy to the Administrative Agent, a
certificate setting forth the amount of such loss, cost or expense in reasonable detail and the
amounts shown on such certificate shall be conclusive if reasonably deemed prime facie correct.




     Section 1.13. Commitment Terminations. (a) Optional Revolving Credit Terminations. The
Borrowers shall have the right at any time and from time to time, upon five (5) Business Days prior
written notice to the Administrative Agent (or such shorter period of time agreed to by the
Administrative Agent), to terminate the Revolving Credit Commitments without premium or penalty and
in whole or in part, any partial termination to be (i) in an amount not less than U.S.$10,000,000
and (ii) allocated ratably among the Lenders in proportion to their respective Revolver
Percentages, provided that the Revolving Credit Commitments may not be reduced to an amount less
than the sum of the Original Dollar Amount of Revolving Loans and Swing Loans and the U.S. Dollar
Equivalent of all L/C Obligations then outstanding. Any termination of the Revolving Credit
Commitments below the L/C Sublimit or the Swing Line Sublimit then in effect shall reduce the L/C
Sublimit and Swing Line Sublimit, as applicable, by a like amount. The Administrative Agent shall
give prompt notice to each Lender of any such termination of the Revolving Credit Commitments.



     (b) Any termination of the Revolving Credit Commitments pursuant to this Section 1.13 may not
be reinstated.



     Section 1.14. Substitution of Lenders. In the event (a) any Borrower receives a claim from
any Lender for compensation under Section 10.3 or 13.1 hereof, (b) any Borrower receives notice
from any Lender of any illegality pursuant to Section 10.1 hereof, (c) any Lender is then a
Defaulting Lender or such Lender is a Subsidiary or Affiliate of a Person who has been deemed
insolvent or becomes the subject of a bankruptcy or insolvency proceeding or a receiver or
conservator or like Person has been appointed for any such Person, or (d) a Lender fails to consent
to an amendment or waiver requested under Section 13.13 hereof at a time when the Required Lenders
have approved such amendment or waiver (any such Lender referred to in clause (a), (b), (c), or (d)
above being hereinafter referred to as an “Affected Lender”), the Borrowers may, in addition to any
other rights the Borrowers may have hereunder or under applicable law, require, at the Borrowers’
expense, any such Affected Lender to assign, at par, without recourse, all of its interest, rights,
and obligations hereunder (including all of its Revolving Credit Commitments and the Loans and
participation interests in Letters of Credit and other amounts at any time owing to it hereunder
and the other Loan Documents) to an Eligible Assignee specified by the Borrowers, provided that (i)
such assignment shall not conflict with or violate any law, rule or regulation or order of any
court or other governmental authority, (ii) the Borrowers shall have paid to the Affected Lender
all monies (together with amounts due such Affected Lender under Section 1.12 hereof as if the
Loans owing to it were prepaid rather than assigned) other than such principal owing to it
hereunder, and (iii) the assignment is entered into



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in accordance with, and subject to the consents required by, Section 13.12 hereof (provided any
assignment fees and reimbursable expenses due thereunder shall be paid by the Borrowers).



     Section 1.15. Defaulting Lenders. Anything contained herein to the contrary notwithstanding,
in the event that any Lender at any time is a Defaulting Lender, then (a) during any Defaulting
Lender Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to
be a “Lender” for purposes of voting on any matters (including the granting of any consents or
waivers) with respect to any of the Loan Documents and such Defaulting Lender’s Revolving Credit
Commitments shall be excluded for purposes of determining “Required Lenders” (provided that the
foregoing shall not permit an increase in such Lender’s Revolving Credit Commitments or an
extension of the maturity date of such Lender’s Loans or other Obligations without such Lender’s
consent); (b) to the extent permitted by applicable law, until such time as the Defaulting Lender
Excess with respect to such Defaulting Lender shall have been reduced to zero, any voluntary
prepayment of the Loans shall, if the Administrative Agent so directs at the time of making such
voluntary prepayment, be applied to the Loans of other Lenders as if such Defaulting Lender had no
Loans outstanding; (c) such Defaulting Lender’s Revolving Credit Commitments and outstanding Loans
shall be excluded for purposes of calculating any facility fee payable to Lenders pursuant to
Section 2.1 in respect of any day during any Defaulting Lender Period with respect to such
Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any fee pursuant to
Section 2.1 with respect to such Defaulting Lender’s Revolving Credit Commitment in respect of any
Defaulting Lender Period with respect to such Defaulting Lender (and any Letter of Credit fee
otherwise payable to a Lender who is a Defaulting Lender shall instead be paid to the L/C Issuer
for its use and benefit); (d) the utilization of Revolving Credit Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Loans of such
Defaulting Lender; and (e) if so requested by the L/C Issuer at any time during the Defaulting
Lender Period with respect to such Defaulting Lender, each Borrower shall deliver to the
Administrative Agent cash collateral in an amount equal to such Defaulting Lender’s Revolver
Percentage of L/C Obligations owed by such Borrower that are then outstanding (to be, held by the
Administrative Agent as set forth in Section 9.4 hereof). No Revolving Credit Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in
this Section 1.15, performance by any Borrower of its obligations hereunder and the other Loan
Documents shall not be excused or otherwise modified as a result of the operation of this Section
1.15. The rights and remedies against a Defaulting Lender under this Section 1.15 are in addition
to other rights and remedies which the Borrowers may have against such Defaulting Lender and which
the Administrative Agent or any Lender may have against such Defaulting Lender.



Section 2. Fees.




     Section 2.1. Fees. (a) Revolving Credit Facility Fee. The Borrowers shall pay to the
Administrative Agent for the ratable account of the Lenders in accordance with their Revolver
Percentages a facility fee at the rate per annum equal to the Applicable Margin (computed on the
basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed) on
the average daily Revolving Credit Commitments, whether or not in use. Such facility fee shall be
payable quarterly in arrears on the last day of each January, April, July and October in each



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year (commencing on the first such date occurring after the date hereof) and on the Revolving
Credit Termination Date, unless the Revolving Credit Commitments are terminated in whole on an
earlier date, in which event the facility fee for the period to the date of such termination in
whole shall be paid on the date of such termination.



     (b) Letter of Credit Fees. On the date of issuance or extension, or increase in the amount,
of any Letter of Credit pursuant to Section 1.3 hereof, the Borrower for whose account such Letter
of Credit is issued, extended or increased shall pay to the L/C Issuer for its own account a
fronting fee equal to the percentage specified in the fee letter dated August 21, 2009, between the
Administrative Agent and the U.S. Borrower (the “BMO Fee Letter”) of the face amount of (or of the
increase in the face amount of) such Letter of Credit. Quarterly in arrears, on the last day of
each January, April, July and October, commencing on the first such date occurring after the date
hereof, each Borrower shall pay for each Letter of Credit issued for its account to the
Administrative Agent, for the ratable benefit of the Lenders in accordance with their Revolver
Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin (computed on
the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed)
in effect during each day of such quarter applied to the daily average face amount of Letters of
Credit issued for such Borrower’s account that were outstanding during such quarter. In addition,
each Borrower shall pay to the L/C Issuer for its own account the L/C Issuer’s standard issuance,
drawing, negotiation, amendment, assignment, and other administrative fees for each Letter of
Credit issued for its account as established by the L/C Issuer from time to time. All fees payable
pursuant to this Section 2.1(b) shall be paid in the currency in which the relevant Letter of
Credit is issued.



     (c) Administrative Agent Fees. The U.S. Borrower shall pay to the Administrative Agent, for
its own use and benefit, the fees agreed to between the Administrative Agent and the U.S. Borrower
in the BMO Fee Letter, or as otherwise agreed to in writing between them.



Section 3. Place and Application of Payments.




     Section 3.1. Place and Application of Payments. All payments of principal of and interest on
the Loans and the Reimbursement Obligations, and of all other Obligations payable by each Borrower
under this Agreement and the other Loan Documents, shall be made by each Borrower to the
Administrative Agent by no later than 12:00 Noon (Chicago time) on the due date thereof at the
office of the Administrative Agent in Chicago, Illinois in the case of payments by the U.S.
Borrower or Toronto, Canada in the case of payments by the Canadian Borrower (or in each case such
other location as the Administrative Agent may designate to the Borrowers), for the benefit of the
Lender(s) or L/C Issuer entitled thereto. Any payments received after such time shall be deemed to
have been received by the Administrative Agent on the next Business Day. All such payments shall
be made in U.S. Dollars, in the case of Obligations denominated in U.S. Dollars, or Canadian
Dollars, in the case of Obligations denominated in Canadian Dollars, in immediately available funds
at the place of payment, in each case without set-off or counterclaim. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the payment of principal or
interest on Loans and on Reimbursement Obligations in which the Lenders have purchased
Participating Interests ratably to the Lenders and like funds relating to the payment of any other
amount payable to any Lender to such



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Lender, in each case to be applied in accordance with the terms of this Agreement. If the
Administrative Agent causes amounts to be distributed to the Lenders in reliance upon the
assumption that a Borrower will make a scheduled payment and such scheduled payment is not so made,
each Lender shall, on demand, repay to the Administrative Agent the amount distributed to such
Lender together with interest thereon in respect of each day during the period commencing on the
date such amount was distributed to such Lender and ending on (but excluding) the date such Lender
repays such amount to the Administrative Agent, at a rate per annum equal to: (i) from the date
the distribution was made to the date two (2) Business Days after payment by such Lender is due
hereunder, (x) if such scheduled payment was to be made in U.S. Dollars, the Federal Funds Rate for
each such day, and (y) if such scheduled payment was to be made in Canadian Dollars, the cost to
the Administrative Agent of funding such amount, and (ii) from the date two (2) Business Days after
the date such payment is due from such Lender to the date such payment is made by such Lender, (x)
if such scheduled payment was to be made in U.S. Dollars, the U.S. Base Rate for each such day, and
(y) if such scheduled payment was to be made in Canadian Dollars, the CAD Base Rate in effect for
each such day.



     Anything contained herein to the contrary notwithstanding (including, without limitation,
Section 1.9(b) hereof), all payments and collections received in respect of the Obligations by the
Administrative Agent or any of the Lenders after acceleration or the final maturity of the
Obligations or termination of the Revolving Credit Commitments as a result of an Event of Default
shall be remitted to the Administrative Agent and distributed as follows:




     (a) first, to the payment of any outstanding costs and expenses incurred by the
Administrative Agent, in protecting, preserving or enforcing rights under the Loan
Documents, and in any event including all costs and expenses of a character which the
Borrowers have agreed to pay the Administrative Agent under Section 13.15 hereof (such funds
to be retained by the Administrative Agent for its own account unless it has previously been
reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be
remitted to the Lenders to reimburse them for payments theretofore made to the
Administrative Agent);




     (b) second, to the payment of the Swing Loans, both for principal and accrued but
unpaid interest;




     (c) third, to the payment of any outstanding interest and fees due under the Loan
Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to
each holder thereof;




     (d) fourth, to the payment of principal on the Loans (other than Swing Loans), unpaid
Reimbursement Obligations, together with amounts to be held by the Administrative Agent as
collateral security for any outstanding L/C Obligations pursuant to Section 9.4 hereof
(until the Administrative Agent is holding an amount of cash equal to the then outstanding
amount of all such L/C Obligations), aggregate amount paid to, or held as collateral
security for, the Lenders and L/C Issuer to be allocated pro rata in accordance with the
aggregate unpaid amounts owing to each holder thereof;



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     (e) fifth, to the payment of all other unpaid Obligations to be allocated pro rata in
accordance with the aggregate unpaid amounts owing to each holder thereof; and




     (f) finally, to the relevant Borrower or whoever else may be lawfully entitled thereto.



Section 4. Guaranties .




     Section 4.1. Guaranties. The payment and performance of the Obligations of the U.S. Borrower
shall at all times be guaranteed by each direct and indirect existing or future Domestic
Subsidiary or group of Domestic Subsidiaries of the U.S. Borrower which guaranty the payment of
other Material Indebtedness of the U.S. Borrower, and the payment and performance of the
Obligations of the Canadian Borrower shall at all times be guaranteed by the U.S. Borrower and by
each direct and indirect existing or future Subsidiary or group of Subsidiaries of the Canadian
Borrower which guaranty the payment of other Material Indebtedness of the Canadian Borrower, in
each case pursuant to Section 12 hereof or pursuant to one or more guaranty agreements in form and
substance acceptable to the Administrative Agent, as the same may be amended, modified or
supplemented from time to time (individually a “Guaranty” and collectively the “Guaranties”; and
the U.S. Borrower in its capacity of a guarantor of the Canadian Borrower’s Obligations and each
such Subsidiary executing and delivering this Agreement as a Guarantor (including any Subsidiary
hereafter executing and delivering an Additional Guarantor Supplement in the form called for by
Section 12 hereof) or a separate Guaranty being referred to herein as a “Guarantor” and
collectively the “Guarantors”).



     Section 4.2. Further Assurances. In the event any Subsidiary is required pursuant to the
terms of Section 4.1 above to become a Guarantor hereunder, the U.S. Borrower shall cause such
Subsidiary to execute a Guaranty or an Additional Guarantor Supplement in the form attached as
Exhibit F, and the U.S. Borrower shall also deliver to the Administrative Agent, or cause such
Subsidiary to deliver to the Administrative Agent, at such Borrower’s cost and expense, such other
instruments, documents, certificates, and opinions reasonably required by the Administrative Agent
in connection therewith.



Section 5. Definitions; Interpretation.




     Section 5.1. Definitions. The following terms when used herein shall have the following
meanings:



     “Acquired Business” means the entity or assets acquired by a Borrower or a Subsidiary in an
Acquisition, whether before or after the date hereof.



     “Acquisition” means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of any Person (other than
a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a



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merger or consolidation or any other combination with another Person (other than a Person that
is a Subsidiary) provided that a Borrower or the Subsidiary is the surviving entity.



     “Adjusted LIBOR” is defined in Section 1.4(b) hereof.



     “Administrative Agent” means Bank of Montreal, in is capacity as Administrative Agent
hereunder, and any successor in such capacity pursuant to Section 11.7 hereof.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.



     “Affiliate” means any Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, another Person. A Person shall be deemed to control
another Person for purposes of this definition if such Person possesses, directly or indirectly,
the power to direct, or cause the direction of, the management and policies of the other Person,
whether through the ownership of voting securities, common directors, trustees or officers, by
contract or otherwise.



     “Agreement” means this Credit Agreement, as the same may be amended, modified, restated or
supplemented from time to time pursuant to the terms hereof.



     “Applicable Margin” means, with respect to Loans, Reimbursement Obligations, and the facility
fees and letter of credit fees payable under Section 2.1 hereof, until the first Pricing Date, the
rates per annum shown opposite Level III below, and thereafter from one Pricing Date to the next
the Applicable Margin means the rates per annum determined in accordance with the following
schedule:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Margin for U.S.	 	Applicable	 	Applicable	 	Applicable	 	 
	 	 	 	 	 	 	Base Rate Loans	 	Margin for	 	Margin for CAD Base	 	Margin for CAD CDOR	 	 
	 	 	 	 	 	 	under revolving	 	Eurodollar Loans	 	Rate Loans Under	 	Loans under	 	 
	 	 	 	 	 	 	credit and	 	under Revolving	 	Revolving Credit	 	Revolving Credit	 	Applicable
	 	 	 	 	Total leverage	 	Reimbursement	 	Credit and Letter	 	and Reimbursement	 	and Letter of	 	Margin for
	 	 	 	 	Ratio for Such	 	Obligations shall	 	of credit Fee Shall	 	Obligations shall	 	Credit Fee Shall	 	Facility Fee Shall
	Level	 	Pricing Date	 	be:	 	Be:	 	be:	 	be:	 	Be:
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	V	 	 	Greater than 2.5 to
1.0
	 	 	1.500	%	 	 	2.500	%	 	 	1.500	%	 	 	2.500	%	 	 	0.400	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	IV	 	Less than or equal
to 2.5 to 1.0, but
greater than to 2.0
to 1.0
	 	 	1.375	%	 	 	2.375	%	 	 	1.375	%	 	 	2.375	%	 	 	0.375	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III	 	Less than or equal
to 2.0 to 1.0, but
greater than 1.5 to
1.0
	 	 	1.250	%	 	 	2.250	%	 	 	1.250	%	 	 	2.250	%	 	 	0.350	%







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	 	 	 	 	 	 	Applicable	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Margin for U.S.	 	Applicable	 	Applicable	 	Applicable	 	 
	 	 	 	 	 	 	Base Rate Loans	 	Margin for	 	Margin for CAD Base	 	Margin for CAD CDOR	 	 
	 	 	 	 	 	 	under revolving	 	Eurodollar Loans	 	Rate Loans Under	 	Loans under	 	 
	 	 	 	 	 	 	credit and	 	under Revolving	 	Revolving Credit	 	Revolving Credit	 	Applicable
	 	 	 	 	Total leverage	 	Reimbursement	 	Credit and Letter	 	and Reimbursement	 	and Letter of	 	Margin for
	 	 	 	 	Ratio for Such	 	Obligations shall	 	of credit Fee Shall	 	Obligations shall	 	Credit Fee Shall	 	Facility Fee Shall
	Level	 	Pricing Date	 	be:	 	Be:	 	be:	 	be:	 	Be:
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II	 	Less than or equal
to 1.5 to 1.0, but
greater than 1.0
	 	 	1.125	%	 	 	2.125	%	 	 	1.125	%	 	 	2.125	%	 	 	0.325	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	I	 	 	Less than or equal
to 1.0 to 1.0
	 	 	1.000	%	 	 	2.000	%	 	 	1.000	%	 	 	2.000	%	 	 	0.300	%





For purposes hereof, the term “Pricing Date” means, for any fiscal quarter of the U.S. Borrower
ending on or after October 31, 2009, the date on which the Administrative Agent is in receipt of
the U.S. Borrower’s most recent financial statements and related compliance certificate (and, in
the case of the year-end financial statements, audit report) for the fiscal quarter then ended,
pursuant to Section 8.5 hereof. The Applicable Margin shall be established based on the Total
Leverage Ratio for the most recently completed fiscal quarter and the Applicable Margin established
on a Pricing Date shall remain in effect until the next Pricing Date. Each determination of the
Applicable Margin made by the Administrative Agent in accordance with the foregoing shall be
conclusive and binding on the Borrowers and the Lenders absent demonstrable error.




     “Application” is defined in Section 1.3(b) hereof.



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



     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section 13.12
hereof), and accepted by the Administrative Agent, in substantially the form of Exhibit G or any
other form approved by the Administrative Agent.



     “Authorized Representative” means those persons shown on the list of officers provided by each
Borrower pursuant to Section 7.2 hereof or on any update of any such list provided by any Borrower
to the Administrative Agent, or any further or different officers of any Borrower so named by any
Authorized Representative of such Borrower in a written notice to the Administrative Agent.



     “BMO Fee Letter” is defined in Section 2.1(b).



     “Borrower” and “Borrowers” are defined in the introductory paragraph of this Agreement.



-24-









 





     “Borrowing” means the total of Loans of a single type advanced, continued for an additional
Interest Period, or converted from a different type into such type by the Lenders on a single date
and, in the case of Eurodollar Loans, for a single Interest Period. Borrowings of Loans are made
and maintained ratably from each of the Lenders according to their Revolver Percentages. A
Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to a Borrower,
is “continued” on the date a new Interest Period for the same type of Loans commences for such
Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other,
all as determined pursuant to Section 1.6 hereof. Borrowings of Swing Loans are made by the Swing
Line Lender in accordance with the procedures set forth in Section 1.7 hereof.



     “Business Day” means (a) any day (other than a Saturday or Sunday) on which banks are not
authorized or required to close in Chicago, Illinois and, if the applicable Business Day relates to
the advance or continuation of, or conversion into, or payment of a Eurodollar Loan, on which banks
are dealing in U.S. Dollar deposits in the interbank eurodollar market in London, England and
Nassau, Bahamas, and (b) if the applicable Business Day relates to a CAD Base Rate Loan or a CAD
CDOR Loan, a day of the year on which Canadian banks are open for dealings in Toronto, Ontario,
Canada.



     “CAD,” “CAD$” or “Canadian Dollar” shall mean lawful money of Canada.



     “CAD Base Rate” is defined in Section 1.4(c).



     “CAD Base Rate Loan” means a Loan bearing interest at a rate specified in Section 1.4(c)
hereof.



     “CAD CDOR Loan” means a Loan bearing interest at a rate specified in Section 1.4(c) hereof.



     “CAD Fixed Rate” is defined in Section 1.4(d).



     “Canadian Benefit Plan” means a plan, fund, program, or policy, formal or informal, funded or
unfunded, insured or uninsured, providing employee benefits, including medical, hospital care,
dental, sickness, accident, disability, life insurance, pension, retirement, fringe, incentive,
supplemental, change of control or savings benefits, governed by Canadian law, under which any
Borrower or one of its Subsidiaries has any liability or contingent liability with respect to any
employee or former employee, but excluding any Canadian Pension Plan.



     “Canadian Pension Plan” means a pension plan required to be registered under Canadian federal
or provincial law that is maintained or contributed to by any Borrower or one of its Subsidiaries
for their employees or former employees, or that any Borrower or one of its Subsidiaries have any
liability or contingent liability, but does not include the Canada Pension
Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of
Quebec, respectively.



-25-









 





     “Canadian Reference Bank” shall mean Bank of Montreal.



     “Capital Lease” means any lease of Property which in accordance with GAAP is required to be
capitalized on the balance sheet of the lessee.



     “Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the
balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.



     “Change of Control” means




     (a) the acquisition of ownership or voting control, directly or indirectly,
beneficially or of record, on or after the Closing Date, by any Person or group (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (the “1934 Act”), as then in effect), of shares representing more than
fifty percent (50%) of the aggregate Ordinary Voting Power represented by the issued and
outstanding capital stock of the U.S. Borrower; provided that the foregoing restriction
shall not apply to acquisitions of capital stock by the Smucker Family so long as the
acquisition by the Smucker Family of such Voting Power shall not result, directly or
indirectly, in a “going private transaction” within the meaning of the 1934 Act;




     (b) the occupation of a majority of the seats (other than vacant seats) on the board of
directors of the U.S. Borrower by Persons who were neither (i) nominated by the board of
directors of the U.S. Borrower nor (ii) appointed by directors so nominated;




     (c) the sale or transfer of all or substantially all of the assets of the U.S.
Borrower, in a single transaction or a series of related transactions, to any person (within
the meaning of Rule 13d-3 of the Securities Exchange Commission under the 1934 Act, as in
effect on the Closing Date) or related persons constituting a group (within the meaning of
Rule 13d-3 of the Securities Exchange Commission under the 1934 Act, as in effect on the
Closing Date); or




     (d) the occurrence of a change in control, or other similar provision, as defined in
any agreement or indenture relating to any issue of Indebtedness for Borrowed Money with an
outstanding principal amount in excess of $15,000,000, the result of which is to cause such
Indebtedness to become due prior to its stated maturity.



     For purposes of this definition, “Ordinary Voting Power” means the aggregate voting power
attributable to all shares of Voting Stock of the U.S. Borrower for purposes of electing directors
of the U.S. Borrower; “Voting Stock” means shares of capital stock of any class or classes of a
Person the holders of which are ordinarily, in the absence of contingencies, entitled to elect
corporate directors (or Persons performing similar functions); and “Smucker Family” means Timothy
P. Smucker, Richard K. Smucker, Susan Smucker Wagstaff and Marcella



-26-









 







Smucker Clark, and any member of their immediate families, heirs, legatees, descendants and
blood relatives to the fifth degree of consanguinity of such individual, or any trustees or trusts
(or other entity created for estate planning purposes) established for their benefit or the benefit
of the members of their immediate families and lineal descendants.



     “Closing Date” means the date of this Agreement or such later Business Day upon which each
condition described in Section 7.2 shall be satisfied or waived in a manner acceptable to the
Administrative Agent in its discretion.



     “Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.



     “Collateral Account” is defined in Section 9.4 hereof.



     “Consideration” shall mean, in connection with an Acquisition, the aggregate consideration
paid, including borrowed funds, cash, the issuance of securities or notes, the assumption or
incurring of liabilities (direct or contingent), the payment of consulting fees or fees for a
covenant not to compete and any other consideration paid for such Acquisition.



     “Consolidated Funded Debt” means the aggregate outstanding amount of all Debt of the U.S.
Borrower and its Subsidiaries which by its terms matures, or which is otherwise payable or unpaid,
one year or more from, or is directly or indirectly renewable or extendible at the option of the
obligor to a date one year or more from the date of the creation thereof, after eliminating all
offsetting debits and credits between the U.S. Borrower and its Subsidiaries and all other items
required to be eliminated in the preparation of consolidated financial statements of the U.S.
Borrower and its Subsidiaries in accordance with GAAP.



     “Consolidated Net Worth” means, at any time,



     (a) the sum of (i) the par value (or value stated on the books of the corporation) of the
capital stock (but excluding treasury stock, capital stock subscribed and unissued and Preferred
Stock redeemable prior to the Revolving Credit Termination Date) of the U.S. Borrower and its
Subsidiaries plus (ii) the amount of the paid-in capital and retained earnings of the U.S. Borrower
and its Subsidiaries, in each case as such amounts would be shown on a consolidated balance sheet
of the U.S. Borrower and its Subsidiaries as of such time prepared in accordance with GAAP, minus



     (b) to the extent included in clause (a), all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.



     “Consolidated Total Assets” shall mean, at any time, all of the assets of the U.S. Borrower
and its Subsidiaries, as determined on a consolidated basis and in accordance with GAAP, after
eliminating all amounts properly attributable to minority interests, if any, in the stock and
surplus of Subsidiaries



-27-









 





     “Consolidated Total Capitalization” means the sum of Consolidated Net Worth and Consolidated
Funded Debt.



     “Credit Event” means the advancing of any Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.



     “Debt” means for any Person (without duplication) (a) all indebtedness created, assumed or
incurred in any manner by such Person representing money borrowed (including by the issuance of
debt securities), (b) all indebtedness for the deferred purchase price of property or services
(other than trade accounts payable arising in the ordinary course of business), (c) all
indebtedness secured by any Lien upon Property of such Person, whether or not such Person has
assumed or become liable for the payment of such indebtedness, and (d) all Capitalized Lease
Obligations of such Person.



     “Default” means any event or condition the occurrence of which would, with the passage of time
or the giving of notice, or both, constitute an Event of Default.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Loans,
participations in L/C Obligations or participations in Swing Line Loans required to be funded by it
hereunder (herein, a “Defaulted Loan”) within two (2) Business Days of the date required to be
funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within two (2) Business Days of the date when due, unless the subject of a good faith dispute or
unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding or a receiver or conservator has been appointed for such
Lender.



     “Defaulting Lender Excess” means, with respect to any Defaulting Lender, the excess, if any,
of such Defaulting Lender’s Percentage of the aggregate outstanding principal amount of Loans of
all Lenders (calculated as if all Defaulting Lenders other than such Defaulting Lender had funded
all of their respective Defaulted Loans) over the aggregate outstanding principal amount of all
Loans of such Defaulting Lender.



     “Defaulting Lender Period” means, with respect to any Defaulting Lender, the period commencing
on the date upon which such Lender first became a Defaulting Lender and ending on the earliest of
the following dates: (i) the date on which all Revolving Credit Commitments are cancelled or
terminated and/or the Obligations are declared or become immediately due and payable and (ii) the
date on which (a) such Defaulting Lender is no longer insolvent, the subject of a bankruptcy or
insolvency proceeding or, if applicable, under the direction of a receiver or conservator, (b) the
Defaulting Lender Excess with respect to such Defaulting Lender shall have been reduced to zero
(whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender
or otherwise), and (c) such Defaulting Lender shall have delivered to the Borrowers and the
Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder
with respect to its Revolving Credit Commitments.



-28-









 





     “Designated Disbursement Account” means, with respect to a Borrower, the account of such
Borrower maintained at Fifth Third Bank and identified to the Administrative Agent in writing prior
to the date hereof, or such other account as such Borrower and the Administrative Agent may
otherwise agree.



     “Domestic Subsidiary” means a Subsidiary of the U.S. Borrower that is not a Foreign
Subsidiary.



     “EBITDA” means, with reference to any period, Net Income for such period plus all amounts
deducted in arriving at such Net Income amount in respect of (a) Interest Expense for such period,
(b) federal, state, and local income taxes for such period, (c) depreciation of fixed assets and
amortization of intangible assets for such period, (d) non-cash share based compensation expense
and other non-cash expenses, losses and charges (other than those representing a reserve for or
actual cash item in any future period) for such period, (e) the Folgers Add-Back, and (f) any
non-recurring charges and expenses in connection with any other Permitted Acquisitions (whether or
not successful) and extraordinary losses and charges for such period, but, without the consent of
the Administrative Agent, not to exceed $50,000,000 during the term of this Agreement, minus (g)
all non-cash gains for such period; provided, that the EBITDA for any Acquired Business acquired by
any Borrower or any Subsidiary pursuant to a Permitted Acquisition (including operating or other
expense reductions and adjustments permitted by Article XI of Regulation S-X promulgated by the
Securities and Exchange Commission) during such period shall be included on a pro forma basis for
such period (assuming the consummation of such acquisition and the incurrence or assumption of any
Indebtedness for Borrowed Money in connection therewith incurred as of the first day of such
period), and provided further that the EBITDA for any entity sold by any Borrower or any Subsidiary
shall deducted on a pro forma basis for such period (assuming the consummation of such sale or
other disposition occurred on the first day of such period).



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate (engaged in the business of making
commercial loans) of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving
Credit Commitment, the L/C Issuer, and (iii) unless an Event of Default has occurred and is
continuing, the Borrowers (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include any Borrower or any
Guarantor or any of any Borrower’s or such Guarantor’s Affiliates or Subsidiaries.



     “Eligible Line of Business” means any business that is substantially the same as or similar
to, or complementary to, one or more of the principal businesses of the U.S. Borrower and its
Subsidiaries (it being understood and agreed that any business or property which is in the food and
beverage industry shall constitute an Eligible Line of Business), such that if the U.S. Borrower
and its Subsidiaries engaged in such line of business, the general nature of the U.S. Borrower and
its Subsidiaries taken as a whole would not be substantially changed.



     “Environmental Claim” means any investigation, notice, violation, demand, allegation, action,
suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim



-29-









 





(whether administrative, judicial or private in nature) arising (a) pursuant to, or in
connection with an actual or alleged violation of, any Environmental Law, (b) in connection with
any Hazardous Material, (c) from any abatement, removal, remedial, corrective or response action in
connection with a Hazardous Material, Environmental Law or order of a governmental authority or (d)
from any actual or alleged damage, injury, threat or harm to health, safety, natural resources or
the environment.



     “Environmental Law” means any current or future obligation under common law or any current or
future Legal Requirement pertaining to (a) the protection of health, safety and the indoor or
outdoor environment, (b) the conservation, management or use of natural resources and wildlife, (c)
the protection or use of surface water or groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material or
(e) pollution (including any Release to air, land, surface water or groundwater), and any
amendment, rule, regulation, order or directive issued thereunder.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute thereto and any regulations or rulings promulgated thereunder, in each case as
amended from time to time.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with any Borrower within the meaning of Section 414 of the Code.



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination
under Section 4041(c) or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any
Borrower or any ERISA Affiliate.



     “Eurodollar Loan” means a Loan bearing interest at the rate specified in Section 1.4(b)
hereof.



     “Eurodollar Reserve Percentage” is defined in Section 1.4(b) hereof.



     “Event of Default” means any event or condition identified as such in Section 9.1 hereof.




-30-











 





     “Federal Funds Rate” means the fluctuating interest rate per annum described in part (x) of
clause (ii) of the definition of U.S. Base Rate appearing in Section 1.4(a) hereof.



     “Folgers” means The Folgers Coffee Company, a Delaware corporation.



     “Folgers Add-Back” means any non-recurring charges and expenses in connection with the
acquisition of Folgers by the U.S. Borrower. The Folgers Add-Back will be deemed to be $31,015,000
for the fiscal quarter ended January 31, 2009, $28,587,000 for the fiscal quarter ended April 30,
2009, $16,065,000 for the fiscal quarter ended July 31, 2009, and will be limited to $20,000,000 in
aggregate for the second, third, and fourth fiscal quarters of the fiscal year ending April 30,
2010.



     “Foreign Subsidiary” means each Subsidiary which is organized under the laws of a jurisdiction
other than the United States of America or any state thereof or the District of Columbia.



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



     “GAAP” means generally accepted accounting principles set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the date of
determination; provided that with respect to the Canadian Borrower GAAP shall mean generally
accepted accounting principles in Canada as approved by the Canadian Institute of Chartered
Accountants in effect from time to time.



     “Governmental Authority” means the government of the United States, Canada or any other
nation, or of any political subdivision thereof, whether state, provincial or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Guarantor” and “Guarantors” each is defined in Section 4.1 hereof.



     “Guaranty” and “Guaranties” each is defined in Section 4.1 hereof.



     “Hazardous Material” means any substance, chemical, compound, product, solid, gas, liquid,
waste, byproduct, pollutant, contaminant or material which is hazardous or toxic, and includes,
without limitation, (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or
any fraction thereof) and (b) any material classified or regulated as “hazardous” or “toxic” or
words of like import pursuant to an Environmental Law.



-31-









 





     “Hazardous Material Activity” means any activity, event or occurrence involving a Hazardous
Material, including, without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal,
remediation, handling of or corrective or response action to any Hazardous Material.



     “Hostile Acquisition” means the acquisition of the capital stock or other equity interests of
a Person through a tender offer or similar solicitation of the owners of such capital stock or
other equity interests which is actively opposed by the Board of Directors of such Person (or by
similar governing body if such Person is not a corporation).



     “Indebtedness for Borrowed Money” means for any Person (without duplication) (a) all
indebtedness created, assumed or incurred in any manner by such Person representing money borrowed
(including by the issuance of debt securities), (b) all indebtedness for the deferred purchase
price of property or services (other than trade accounts payable arising in the ordinary course of
business), (c) all indebtedness secured by any Lien upon Property of such Person, whether or not
such Person has assumed or become liable for the payment of such indebtedness, (d) all Capitalized
Lease Obligations of such Person, and (e) all obligations of such Person on or with respect to
letters of credit and bankers’ acceptances whether or not representing obligations for borrowed
money.



     “IRS” means the United States Internal Revenue Service.



     “Interest Coverage Ratio” means, as of the last day of any fiscal quarter of the Borrowers,
the ratio of EBITDA of the Borrowers and their Subsidiaries as of the last day of such fiscal
quarter to Interest Expense payable in cash of the Borrowers and their Subsidiaries, in each case
for the period of four fiscal quarters then ended.



     “Interest Expense” means, with reference to any period, the sum of all interest charges of the
Borrowers and their Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP.



     “Interest Payment Date” means (a) with respect to any Eurodollar Loan, the last day of each
Interest Period with respect to such Eurodollar Loan and on the maturity date and, if the
applicable Interest Period is longer than (3) three months, on each day occurring every three (3)
months after the commencement of such Interest Period, (b) with respect to any U.S. Base Rate Loan
and CAD Base Rate Loan (other than Swing Loans), the last day of every January, April, July and
October and on the maturity date, (c) with respect to any CAD CDOR Loan, the last day of each
Interest Period with respect to such CAD CDOR Loan and on the maturity date and, if the Interest
Period is longer than 90 days, on each day occurring every 90 days after the commencement of such
Interest Period, and (d) as to any Swing Loan, bearing interest by reference to the U.S. Base Rate
or the CAD Base Rate, the last day of every calendar month, and on the maturity date.



     “Interest Period” means the period commencing on the date a Borrowing of Eurodollar Loans or
CAD CDOR Loans is advanced, continued, or created by conversion and ending (a) in



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the case of Eurodollar Loans, 1, 2, 3, or 6 months thereafter, and (b) in the case of a CAD
CDOR Loan, 1, 2, 3 or 6 months thereafter, provided, however, that:




     (i) no Interest Period shall extend beyond the scheduled final maturity date of the
relevant Loans;




     (ii) whenever the last day of any Interest Period would otherwise be a day that is not
a Business Day, the last day of such Interest Period shall be extended to the next
succeeding Business Day, provided that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately preceding Business Day;
and




     (iii) for purposes of determining an Interest Period for a Borrowing of Eurodollar
Loans, a month means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided, however, that if there
is no numerically corresponding day in the month in which such an Interest Period is to end
or if such an Interest Period begins on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the calendar month in which such
Interest Period is to end.



     “L/C Issuer “ means Bank of Montreal, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 1.3(h) hereof.



     “L/C Obligations” means the U.S. Dollar Equivalent of the aggregate undrawn face amounts of
all outstanding Letters of Credit and all unpaid Reimbursement Obligations.



     “L/C Sublimit” means U.S.$50,000,000, as may be reduced pursuant to the terms hereof.



     “Lead Arrangers” means Bank of Montreal and Banc of America Securities LLC.



     “Legal Requirement” means any treaty, convention, statute, law, regulation, ordinance,
license, permit, governmental approval, injunction, judgment, order, consent decree or any
directive, policy or guideline of any Governmental Authority having the force of law or other
requirement of any Governmental Authority, whether federal, state, or local.



     “Lenders” means and includes Bank of Montreal and the other financial institutions from time
to time party to this Agreement, including each Person that becomes a Lender pursuant to Section
1.2, each assignee Lender pursuant to Section 13.12 hereof and, unless the context otherwise
requires, the Swing Line Lender.



     “Lending Office” is defined in Section 10.4 hereof.



     “Letter of Credit” is defined in Section 1.3(a) hereof.



     “LIBOR” is defined in Section 1.4(b) hereof.



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     “Lien” means any mortgage, lien, security interest, pledge, hypothec, charge or encumbrance of
any kind in respect of any Property, including the interests of a vendor or lessor under any
conditional sale, Capital Lease or other title retention arrangement and any trust that secures
payment of an obligation.



     “Loan” means any Revolving Loan or Swing Loan, whether outstanding as a U.S. Base Rate Loan,
Eurodollar Loan, CAD Base Rate Loan or CAD CDOR Loan or otherwise, each of which is a “type” of
Loan hereunder.



     “Loan Documents” means this Agreement, the Notes (if any), the Applications, the Guaranties,
and each other instrument or document to be delivered by a Loan Party hereunder or thereunder or
otherwise in connection therewith.



     “Loan Party” means each Borrower and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or material adverse effect
upon, the business, financial condition, operations, assets or Properties of the Borrowers and
their Subsidiaries taken as a whole, (b) a material impairment of the ability of any Borrower or
any Subsidiary to perform its material obligations under any Loan Document or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against any Borrower
or any Subsidiary of any Loan Document or the rights and remedies of the Administrative Agent and
the Lenders thereunder.



     “Material Indebtedness” means any Indebtedness for Borrowed Money with an individual principal
balance in excess of U.S.$100,000,000.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
400l(a)(3) of ERISA that is subject to Title IV of ERISA, to which any Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions.



     “Net Income” means, with reference to any period, the net income (or net loss) of the
Borrowers and their Subsidiaries for such period computed on a consolidated basis in accordance
with GAAP; provided that there shall be excluded from Net Income (a) the net income (or net loss)
of any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or
consolidated with, any Borrower or another Subsidiary, and (b) the net income (or net loss) of any
Person (other than a Subsidiary) in which any Borrower or any of its Subsidiaries has an equity
interest, except to the extent of the amount of dividends or other distributions actually paid to
any Borrower or any of its Subsidiaries during such period.



     “Note” and “Notes” each is defined in Section 1.11 hereof.



     “Obligations” means, with respect to any Borrower, all obligations of such Borrower to pay
principal and interest on the Loans, all Reimbursement Obligations owing under the



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Applications, all fees and charges payable hereunder, and all other payment obligations of
such Borrower or any of its Subsidiaries arising under or in relation to any Loan Document, in each
case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute
or contingent, and howsoever evidenced, held or acquired.



     “OFAC” means the United States Department of Treasury Office of Foreign Assets Control.



     “OFAC Event” means the event specified in Section 8.15 hereof.



     “OFAC Sanctions Programs” means all laws, regulations, and Executive Orders administered by
OFAC, including without limitation, the Bank Secrecy Act, anti-money laundering laws (including,
without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56 (a/k/a the USA Patriot Act)), and
all economic and trade sanction programs administered by OFAC, any and all similar United States
federal laws, regulations or Executive Orders, and any similar laws, regulators or orders adopted
by any State within the United States.



     “OFAC SDN List” means the list of the Specially Designated Nationals and Blocked Persons
maintained by OFAC.



     “Original Dollar Amount” means the amount of any Obligation denominated in U.S. Dollars and,
in relation to any Loan denominated in Canadian Dollars, the U.S. Dollar Equivalent of such Loan on
the day it is advanced or continued for an Interest Period.



     “Participating Interest” is defined in Section 1.3(e) hereof.



     “Participating Lender” is defined in Section 1.3(e) hereof.



     “PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all
of its functions under ERISA.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by any Borrower or any ERISA Affiliate or to which any Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Acquisition” means any Acquisition with respect to which all of the following
conditions shall have been satisfied:




     (a) the Acquired Business is in an Eligible Line of Business;




     (b) the Acquisition shall not be a Hostile Acquisition;



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     (c) if a new Domestic Subsidiary is formed or acquired as a result of or in connection
with the Acquisition and such Domestic Subsidiary is required to provide a Guaranty under
Section 4 hereof, the relevant Borrower shall have complied with the requirements of Section
4 hereof in connection therewith;




     (d) after giving effect to the Acquisition and any Credit Event in connection
therewith, no Default or Event of Default shall exist, including with respect to the
financial covenants contained in Section 8.20 hereof on a pro forma basis; and




     (e) if the Consideration paid for such Acquisition is in excess of One Hundred Million
Dollars ($100,000,000), Borrowers shall have provided to Administrative Agent and the
Lenders, at least ten (10) days prior to such Acquisition, historical financial statements
of the target entity and a pro forma financial statement of the U.S. Borrower and its
Subsidiaries accompanied by a certificate of a financial officer of U.S. Borrower showing
pro forma compliance with Section 8.20 hereof, both before and after the proposed
Acquisition.



     “Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization or any other entity or organization, including a
government or agency or political subdivision thereof.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
that is subject to ERISA and is established solely by any Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Preferred Stock” means any class of capital stock of the U.S. Borrower that is preferred over
any other class of capital stock of the U.S. Borrower as to the payment of dividends or the payment
of any amount upon liquidation or dissolution of the U.S. Borrower.



     “Premises” means the real property owned or leased by any Borrower or any Subsidiary.



     “Priority Debt” means all Debt of Subsidiaries other than (a) any such indebtedness held by a
Borrower or another Subsidiary, (b) any such indebtedness of a Subsidiary that is a Guarantor or
(c) any Obligations of the Canadian Borrower under the Loan Documents.



     “Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed
property owned by such Person whether or not included in the most recent balance sheet of such
Person and its subsidiaries under GAAP.



     “Reimbursement Obligation” is defined in Section 1.3(c) hereof.



     “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, migration, dumping, or disposing into the indoor or outdoor
environment, including, without limitation, the abandonment or discarding of barrels,
drums, containers, tanks or other receptacles containing or previously containing any
Hazardous Material.



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     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.



     “Required Lenders” means, as of the date of determination thereof, Lenders whose outstanding
Loans and interests in Letters of Credit and Unused Revolving Credit Commitments constitute more
than 50% of the sum of the total outstanding Loans, interests in Letters of Credit, and Unused
Revolving Credit Commitments of the Lenders.



     “Revaluation Date” means, with respect to any Letter of Credit denominated in Canadian
Dollars, (a) the date of issuance thereof, (b) the date of each amendment thereto having the effect
of increasing the amount thereof, (c) the last day of each calendar month, and (d) each additional
date as the Administrative Agent or the Required Lenders shall specify.



     “Revolver Percentage” means, for each Lender, the percentage of the aggregate Revolving Credit
Commitments represented by such Lender’s Revolving Credit Commitment or, if the Revolving Credit
Commitments have been terminated, the percentage held by such Lender (including through
participation interests in Reimbursement Obligations) of the aggregate Original Dollar Amount of
all Revolving Loans and L/C Obligations then outstanding.



     “Revolving Credit” means the credit facility for making Revolving Loans and Swing Loans and
issuing Letters of Credit described in Sections 1.1, 1.3 and 1.7 hereof.



     “Revolving Credit Commitment” means, as to any Lender, the obligation of such Lender to make
Revolving Loans and to participate in Swing Loans and Letters of Credit issued for the account of
the Borrowers hereunder in an aggregate principal or face amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule 1 attached hereto and made a
part hereof, as the same may be reduced or modified at any time or from time to time pursuant to
the terms hereof. The Borrowers and the Lenders acknowledge and agree that the Revolving Credit
Commitments of the Lenders aggregate U.S.$400,000,000 on the date hereof.



     “Revolving Credit Termination Date” means October 29, 2012, or such earlier date on which the
Revolving Credit Commitments are terminated in whole pursuant to Section 1.13, 9.2 or 9.3 hereof.



     “Revolving Loan” is defined in Section 1.1 hereof and, as so defined, includes a U.S. Base
Rate Loan, a Eurodollar Loan, a CAD Base Rate Loan or a CAD CDOR Loan, each of which is a “type” of
Revolving Loan hereunder.



     “Revolving Note” is defined in Section 1.11 hereof.



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



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     “Specified Subsidiaries” means the Canadian Borrower, the Guarantors, Smucker Sales and
Distribution Company and Smucker Services Company.



     “Subsidiary” means, as to any particular parent corporation or organization, any other
corporation or organization more than 50% of the outstanding Voting Stock of which is at the time
directly or indirectly owned by such parent corporation or organization or by any one or more other
entities which are themselves subsidiaries of such parent corporation or organization. Unless
otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of the U.S. Borrower or
of any of its direct or indirect Subsidiaries.



     “Swing Line” means the credit facility for making one or more Swing Loans described in Section
1.7 hereof.



     “Swing Line Lender” means Bank of Montreal, acting in its capacity as the Lender of Swing
Loans hereunder, or any successor Lender acting in such capacity appointed pursuant to Section
13.12 hereof.



     “Swing Line Sublimit” means $20,000,000, as may be reduced pursuant to the terms hereof.



     “Swing Loan” and “Swing Loans” each is defined in Section 1.7 hereof.



     “Swing Note” is defined in Section 1.11 hereof.



     “Total Funded Debt” means, at any time the same is to be determined, the sum (but without
duplication), after eliminating all offsetting debits and credits between the U.S. Borrower and its
Subsidiaries and all other items required to be eliminated in the preparation of consolidated
financial statements of the U.S. Borrower and its Subsidiaries in accordance with GAAP, of (a) all
Indebtedness for Borrowed Money of the U.S. Borrowers and its Subsidiaries at such time, and (b)
all Indebtedness for Borrowed Money of any other Person which is directly or indirectly guaranteed
by the U.S. Borrower or any of its Subsidiaries or which the U.S. Borrower or any of its
Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect
of which the U.S. Borrower or any of its Subsidiaries has otherwise assured a creditor against
loss.



     “Total Leverage Ratio” means, as of the last day of any fiscal quarter of the U.S. Borrower,
the ratio of Total Funded Debt of the U.S. Borrower and its Subsidiaries as of the last day of such
fiscal quarter to EBITDA of the U.S. Borrower and its Subsidiaries for the period of four fiscal
quarters then ended, determined on a consolidated basis in accordance with GAAP.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities over the
value of assets of the Pension Plan. For this purpose, the benefit liabilities of a Pension Plan
for a plan year shall be the Pension Plan’s “funding target” determined under Section 430(d)(1) of
the Code (without regard to Section 430(i)(1) of the Code) for the plan year, and the value of the
assets for such plan year shall be such value as is used pursuant to



-38-









 






Section 430 of the
Code for purposes of determining the annual contribution requirements with respect to the
Pension Plan for such plan year.



     “Unused Revolving Credit Commitments” means, at any time, the difference between the Revolving
Credit Commitments then in effect and the aggregate outstanding principal amount of Revolving Loans
and L/C Obligations.



     “U.S. Base Rate Loan” means a Loan bearing interest at a rate specified in Section 1.4(a)
hereof.



     “U.S. Dollar Equivalent” means (a) the amount of any Obligation or Letter of Credit
denominated in U.S. Dollars, (b) in relation to any Obligation or Letter of Credit denominated in
Canadian Dollars, (i) the amount of U.S. Dollars which would be realized by converting Canadian
Dollars into U.S. Dollars at the exchange rate determined by the Administrative Agent, at
approximately 12:00 Noon (Toronto time) on to the date on which a computation thereof is required
to be made, and (ii) in the case of L/C Obligations, on any Revaluation Date, in each case, by
major banks in the interbank foreign exchange market for the purchase of U.S. Dollars for Canadian
Dollars.



     “U.S. Dollars,” “U.S.$” and “$” each means the lawful currency of the United States of
America.



     “Voting Stock” of any Person means capital stock or other equity interests of any class or
classes (however designated) having ordinary power for the election of directors or other similar
governing body of such Person, other than stock or other equity interests having such power only by
reason of the happening of a contingency.



     “Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.



     “Wholly-owned Subsidiary” means a Subsidiary of which all of the issued and outstanding shares
of capital stock (other than directors’ qualifying shares as required by law) or other equity
interests are owned by any Borrower and/or one or more Wholly-owned Subsidiaries or any Borrower
within the meaning of this definition.



     Section 5.2. Interpretation. The foregoing definitions are equally applicable to both the
singular and plural forms of the terms defined. The words “hereof”, “herein”, and “hereunder” and
words of like import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. All references to time of day herein are references
to Chicago, Illinois, time unless otherwise specifically provided. Where the character or amount
of any asset or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent
with the specific provisions of this Agreement. References to “knowledge” of a Loan Party or other
Person means the actual knowledge of officers of such Person with responsibility for the relevant
subject matter.



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     Section 5.3. Change in Accounting Principles. If, after the date of this Agreement, there
shall occur any change in GAAP from those used in the preparation of the financial statements
referred to in Section 6.5 hereof and such change shall result in a change in the method of
calculation of any financial covenant, standard or term found in this Agreement, either the
Borrowers or the Required Lenders may by notice to the Lenders and the Borrowers, respectively,
require that the Lenders and the Borrowers negotiate in good faith to amend such covenants,
standards, and terms so as equitably to reflect such change in accounting principles, with the
desired result being that the criteria for evaluating the financial condition of the Borrowers and
their Subsidiaries shall be the same as if such change had not been made. No delay by the
Borrowers or the Required Lenders in requiring such negotiation shall limit their right to so
require such a negotiation at any time after such a change in accounting principles. Until any
such covenant, standard, or term is amended in accordance with this Section 5.3, financial
covenants shall be computed and determined in accordance with GAAP in effect prior to such change
in accounting principles. Without limiting the generality of the foregoing, the Borrowers shall
neither be deemed to be in compliance with any financial covenant hereunder nor out of compliance
with any financial covenant hereunder if such state of compliance or noncompliance, as the case may
be, would not exist but for the occurrence of a change in accounting principles after the date
hereof.



Section 6. Representations and Warranties.




     Each Borrower represents and warrants to the Administrative Agent, the Lenders, and the L/C
Issuer as follows:



     Section 6.1. Organization and Qualification. Each Borrower is duly organized, validly
existing, and in good standing under the laws of the State or province of its jurisdiction of
organization, has the corporate or other organizational power to own its Property and conduct its
business as now conducted, and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business conducted by it or the nature of the Property
owned or leased by it requires such licensing or qualifying, except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect.



     Section 6.2. Subsidiaries. Each of the Specified Subsidiaries is duly organized, validly
existing, and in good standing under the laws of the jurisdiction in which it is organized, has the
corporate or other organizational power to own its Property and conduct its business as now
conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the
nature of the business conducted by it or the nature of the Property owned or leased by it requires
such licensing or qualifying, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect. Schedule 6.2 hereto identifies as of the date hereof each of the
Specified Subsidiaries, the jurisdiction of its organization, its registered office (if it is a
Canadian organization), and, other than with respect to the U.S. Borrower, the percentage of issued
and outstanding shares of each class of its capital stock or other equity interests owned by each
Borrower and the other Subsidiaries.



     Section 6.3. Authority and Validity of Obligations. Each Borrower has the corporate and other
organizational authority to enter into this Agreement and the other Loan Documents



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executed by it,
to make the Borrowings herein provided for, and to perform all of its obligations hereunder and
under the other Loan Documents executed by it. Each other Loan Party has full right and authority
to enter into the Loan Documents executed by it, to guarantee the Obligations, and to perform all
of its obligations under the Loan Documents executed by it. The Loan Documents delivered by each
Loan Party have been duly authorized, executed, and delivered by such Person and constitute valid
and binding obligations of such Loan Party enforceable against it in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors’ rights generally and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity or at law); and this
Agreement and the other Loan Documents do not, nor does the performance or observance by any Loan
Party of any of the matters and things herein or therein provided for, (a) contravene or constitute
a default under any provision of law except to the extent such contravention or default would not
reasonably be expected to have a Material Adverse Effect, (b) contravene any material judgment,
injunction, order or decree binding upon any Loan Party or any provision of the organizational
documents (e.g., charter, certificate or articles of incorporation and by-laws, certificate or
articles of association and operating agreement, partnership agreement, or other similar
organizational documents) of any Loan Party, (c) contravene or constitute a default under any
indenture or agreement for Material Indebtedness of any Loan Party, or (d) result in the creation
or imposition of any Lien on any Property of any Loan Party.




     Section 6.4. Use of Proceeds; Margin Stock. The Borrowers shall use the proceeds of the
Revolving Credit to refinance existing indebtedness, for their general corporate and working
capital purposes (including Acquisitions), and to fund certain fees and expenses relating to the
Agreement and the transactions contemplated hereby. Neither any Borrower nor any Subsidiary is
engaged in the business of extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and
no part of the proceeds of any Loan or any other extension of credit made hereunder will be used to
purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing
or carrying any such margin stock. Margin stock (as hereinabove defined) constitutes less than 25%
of the assets of any Borrower and its Subsidiaries which are subject to any limitation on sale,
pledge or other restriction hereunder.



     Section 6.5. Financial Reports. The consolidated balance sheet of the U.S. Borrower and its
Subsidiaries as at April 30, 2009, and the related consolidated statements of income, retained
earnings and cash flows of the U.S. Borrower and its Subsidiaries for the fiscal year then ended,
and accompanying notes thereto, which financial statements are accompanied by the audit report of
Ernst & Young LLP, independent public accountants, and the unaudited interim consolidated balance
sheet of the U.S. Borrower and its Subsidiaries as at July 31, 2009, and the related consolidated
statements of income, retained earnings and cash flows of the U.S. Borrower and its Subsidiaries
for the 3 months then ended, heretofore furnished to the Administrative Agent and the Lenders,
fairly present in all material respects the consolidated financial condition of the U.S. Borrower
and its Subsidiaries
as at said dates and the consolidated results of their operations and cash flows for the periods
then ended in conformity with GAAP applied on a consistent basis.



-41-









 





     Section 6.6. No Material Adverse Change. Since April 30, 2009, there has been no material
adverse change in the business, financial condition, operations, assets or Properties of the
Borrowers and their Subsidiaries taken as a whole.



     Section 6.7. Full Disclosure. The statements and written information furnished to the
Administrative Agent and the Lenders in connection with the negotiation of this Agreement and the
other Loan Documents and the commitments by the Lenders to provide all or part of the financing
contemplated hereby (as modified or supplemented by other information so furnished or publicly
available in periodic and other reports, proxy statements and other materials filed by the U.S.
Borrower or any Subsidiary with the Securities and Exchange Commission), taken as a whole, do not
contain any material misstatement of fact or omit to state any material fact necessary to make the
material statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, and other
forward-looking statements, the Borrowers represent only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time prepared.



     Section 6.8. Trademarks, Franchises, and Licenses. Each Borrower and its Subsidiaries own,
possess, or have the right to use all necessary patents, licenses, franchises, trademarks, trade
names, trade styles, copyrights, trade secrets, know how, and confidential commercial and
proprietary information necessary to conduct their businesses as now conducted, without known
conflict with any patent, license, franchise, trademark, trade name, trade style, copyright or
other proprietary right of any other Person, except to the extent as would not reasonably be
expected to result in a Material Adverse Effect.



     Section 6.9. Governmental Authority and Licensing. Each Borrower and its Subsidiaries have
received all licenses, permits, and approvals of all federal, state, provincial, and local
governmental authorities, if any, necessary to conduct their businesses, in each case where the
failure to obtain or maintain the same would reasonably be expected to have a Material Adverse
Effect. No investigation or proceeding which, if adversely determined, would reasonably be
expected to result in revocation or denial of any material license, permit or approval, and which
revocation or denial would reasonably be expected to result in a Material Adverse Effect is pending
or threatened in writing.



     Section 6.10. Good Title. Each Borrower and its Subsidiaries have good and defensible title
(or valid leasehold interests) to their assets as reflected on the most recent audited consolidated
balance sheet of such Borrower and its Subsidiaries furnished to the Administrative Agent and the
Lenders (except for sales of assets in the ordinary course of business), subject to no Liens other
than such thereof as are permitted by Section 8.8 hereof.



     Section 6.11. Litigation and Other Controversies. There is no litigation or governmental or
arbitration proceeding or labor controversy pending or threatened in writing, against any Borrower
or any Subsidiary or any of their Property which is reasonably likely to be adversely determined,
and if adversely determined, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect.



-42-









 





     Section 6.12. Taxes. All income and other material tax returns required to be filed by each
Borrower or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees, and other governmental charges upon such Borrower or any Subsidiary or upon any
of its Property, income or franchises, which are shown to be due and payable in such returns, have
been paid, except such taxes, assessments, fees and governmental charges, if any, as are being
contested in good faith and by appropriate proceedings which prevent enforcement of the matter
under contest and as to which adequate reserves established in accordance with GAAP have been
provided or which failure to pay would not reasonably be expected to result in a Material Adverse
Effect. No Borrower knows of any proposed material additional tax assessment against it or its
Subsidiaries for which adequate provisions in accordance with GAAP have not been made on their
accounts that would reasonably be expected to result in a Material Adverse Effect. Adequate
provisions in accordance with GAAP for taxes on the books of each Borrower and each Subsidiary have
been made for all open years, and for its current fiscal period.



     Section 6.13. Approvals. No authorization, consent, license or exemption from, or filing or
registration with, any court or governmental department, agency or instrumentality, nor any
approval or consent of any other Person, is or will be necessary to the valid execution, delivery
or performance by any Borrower or any Subsidiary of any Loan Document, except those that have been
obtained and remain in full force and effect or which are not required to be made or obtained as of
each time this representation is made or deemed made.



     Section 6.14. Investment Company. Neither any Borrower nor any Subsidiary is an “investment
company” or a company “controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.



     Section 6.15. Benefit Plans. (a) ERISA. (i) Each Plan is in compliance with the applicable
provisions of ERISA, the Code and applicable Federal laws except for any such noncompliance that
would not result in a Material Adverse Effect. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of
any Borrower, nothing has occurred which would reasonably be expected to cause the loss of, such
qualification. Each Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



     (ii) There are no pending or, to the knowledge of any Borrower, overtly threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
would reasonably be expected to result in a Material Adverse Effect.



     (iii) (A) No ERISA Event has occurred or is reasonably expected to occur that would have a
Material Adverse Effect; (B) as of the first day of the most recent plan year of a Pension Plan for
which the sponsor of the Pension Plan has received an actuarial valuation report, no



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Pension Plan
has any Unfunded Pension Liability that could reasonably be expected to have a Material Adverse
Effect; (C) neither any Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA) that would have a Material Adverse Effect; (D)
neither any the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan that could reasonably be expected to have a Material Adverse Effect; and (E) neither any
Borrower nor any ERISA Affiliate has knowingly engaged in a transaction that would be reasonably
expected to be subject to Section 4069 or 4212(c) of ERISA.




     (b) Canadian Pension Plan and Benefit Plans. Schedule 6.15(b) hereto lists as of the date
hereof all Canadian Benefit Plans and Canadian Pension Plans. The Canadian Pension Plans are duly
registered under the Income Tax Act (Canada) and all other applicable laws which require
registration. Each Borrower and its Subsidiaries have complied with and performed all of their
statutory obligations under and in respect of the Canadian Pension Plans and Canadian Benefit Plans
under the terms thereof, any funding agreements and all applicable laws (including any fiduciary,
funding, investment and administration obligations) except to the extent as would not reasonably be
expected to have a Material Adverse Effect. All employer and employee payments, contributions or
premiums to be remitted, paid to or in respect of each Canadian Pension Plan or Canadian Benefit
Plan have been paid in a timely fashion in accordance with the terms thereof, any funding agreement
and all applicable laws except to the extent the failure to do so would not reasonably be expected
to have a Material Adverse Effect. Except as set forth on Schedule 6.15(b) hereto, as of the date
hereof each of the Canadian Benefit Plans is either fully funded or fully insured. Except as set
forth on Schedule 6.15(b) hereto, as of the date hereof there are no outstanding actions or suits
concerning the assets of the Canadian Pension Plans or the Canadian Benefit Plans. Except as set
forth on Schedule 6.15(b) hereto, as of the date hereof neither the Canadian Borrower or its
Subsidiaries have any liability in respect of a multi-employer pension plan as that term is defined
in the relevant Canadian pension legislation. Except as set forth on Schedule 6.15(b) hereto, as
of the date hereof each of the Canadian Pension Plans is fully funded on a going concern basis or
solvency basis (using actuarial methods and assumptions which are consistent with the valuations
last filed with the applicable Governmental Authorities or commissioned at the request of any
Borrower or its Subsidiaries and which are consistent with generally accepted actuarial
principles).



     Section 6.16. Compliance with Laws. Each Borrower and its Subsidiaries are in compliance with
the requirements of all federal, state, provincial and local laws, rules and regulations applicable
to or pertaining to their Property or business operations (including, without limitation, the
Occupational Safety and Health Act of 1970, the Americans with Disabilities Act of 1990, and laws
and regulations establishing quality criteria and standards for air, water, land and toxic or
hazardous wastes and substances), where any such non-compliance, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. Neither any Borrower nor any
Subsidiary has received notice to the effect that its operations are not in compliance with any of
the requirements of applicable federal, state, provincial or local environmental, health, and
safety statutes and regulations or is the subject of



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any governmental investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, where any such non-compliance or remedial action, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.




     Section 6.17. OFAC. (a) Each Borrower is in compliance with the requirements of all United
States and Canadian export control, trade and commerce laws (including without limitation the OFAC
Sanctions Program) applicable to it, (b) each Subsidiary of each Borrower is in compliance with the
requirements of all United States and Canadian export control, trade and commerce laws (including
without limitation the OFAC Sanctions Program) applicable to such Subsidiary, (c) each Borrower has
provided to the Administrative Agent, the L/C Issuer, and the Lenders all information regarding
such Borrower and its Affiliates and Subsidiaries necessary for the Administrative Agent, the L/C
Issuer, and the Lenders to comply with all applicable United States and Canadian export control,
trade and commerce laws, (including without limitation the OFAC Sanctions Program), and (d) to the
Borrowers’ knowledge, neither such Borrower nor any of its Affiliates or Subsidiaries is, as of the
date hereof, named on the current OFAC SDN List.



     Section 6.18. Other Agreements. Neither Borrower nor any Loan Party is in default under the
terms of any covenant, indenture or agreement of or affecting such Person or any of its Property,
which default would reasonably be expected to have a Material Adverse Effect.



     Section 6.19. Solvency. (a) U.S. Borrower. The U.S. Borrower and its Subsidiaries are
solvent, able to pay their debts as they become due, and have sufficient capital to carry on their
business and all businesses in which they are about to engage.



     (b) Canadian Borrower. Canadian Borrower has received consideration that is the reasonable
equivalent value of the obligations and liabilities that Canadian Borrower has incurred to the
Administrative Agent and the Lenders. Canadian Borrower is not insolvent as defined in any
applicable state, provincial, federal, municipal or relevant foreign statute, nor will Canadian
Borrower be rendered insolvent by the execution and delivery of the Loan Documents to the
Administrative Agent and the Lenders. Canadian Borrower is not engaged or about to engage in any
business or transaction for which the assets retained by it are or will be an unreasonably small
amount of capital, taking into consideration the obligations to the
Administrative Agent and the Lenders incurred hereunder. Canadian Borrower does not intend to, nor
does it believe that it will, incur debts beyond its ability to pay such debts as they mature.



     Section 6.20. No Default. No Default or Event of Default has occurred and is continuing
immediately after the execution and delivery hereof.



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Section 7. Conditions Precedent.




     Section 7.1. All Credit Events. At the time of each Credit Event hereunder:




     (a) each of the representations and warranties set forth herein and in the other Loan
Documents shall be and remain true and correct in all material respects as of said time,
except to the extent the same expressly relate to an earlier date;




     (b) no Default or Event of Default shall have occurred and be continuing or would occur
as a result of such Credit Event;




     (c) in the case of a Borrowing the Administrative Agent shall have received the notice
required by Section 1.6 hereof, in the case of the issuance of any Letter of Credit the L/C
Issuer shall have received a duly completed Application for such Letter of Credit together
with any fees called for by Section 2.1 hereof, and, in the case of an extension or increase
in the amount of a Letter of Credit, a written request therefor in a form acceptable to the
L/C Issuer together with fees called for by Section 2.1 hereof; and




     (d) such Credit Event shall not violate any order, judgment or decree of any court or
other authority or any provision of law or regulation applicable to the Administrative
Agent, the L/C Issuer, or any Lender (including, without limitation, Regulation U of the
Board of Governors of the Federal Reserve System) as then in effect.



     Each request for a Borrowing hereunder and each request for the issuance of, increase in the
amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower making such request on the date on such Credit Event as
to the facts specified in subsections (a) through (c), both inclusive, of this Section; provided,
however, that the Lenders may continue to make advances under the Revolving Credit, in the sole
discretion of the Lenders with Revolving Credit Commitments, notwithstanding the failure of any
Borrower to satisfy one or more of the conditions set forth above and any such advances so made
shall not be deemed a waiver of any Default or Event of Default or other condition set forth above
that may then exist.



     Section 7.2. Initial Credit Event. Before or concurrently with the initial Credit Event:




     (a) the Administrative Agent shall have received this Agreement duly executed by the
Borrowers, the Guarantors, and the Lenders;




     (b) if requested by any Lender, the Administrative Agent shall have received for such
Lender such Lender’s duly executed Notes of each Borrower dated the date hereof and
otherwise in compliance with the provisions of Section 1.11 hereof;




     (c) the Administrative Agent shall have received copies of each Borrower’s and each
Guarantor’s articles of incorporation and bylaws (or comparable organizational documents)
and any amendments thereto, certified in each instance by its Secretary or Assistant
Secretary (or individual holding a comparable position);



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     (d) the Administrative Agent shall have received copies of resolutions (or equivalent
authorizations) of each Borrower’s and each Guarantor’s Board of Directors (or similar
governing body) authorizing the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party and the consummation of the transactions
contemplated hereby and thereby, together with specimen signatures of the persons authorized
to execute such documents on each Borrower’s and each Guarantor’s behalf, all certified in
each instance by its Secretary or Assistant Secretary;




     (e) the Administrative Agent shall have received copies of the certificates of good
standing (or equivalent instrument) for each Borrower and each Guarantor (dated no earlier
than 30 days prior to the date hereof) from the office of the secretary of the state or the
registrar of its province of its incorporation or organization;




     (f) the Administrative Agent shall have received a list of each Borrower’s Authorized
Representatives;




     (g) the Administrative Agent shall have received payment of all fees payable on the
Closing Date to Bank of Montreal and the Lenders (including upfront fees for the Lenders)
pursuant to the BMO Fee Letter;




     (h) the Administrative Agent shall have received written confirmation from Bank of
America N.A. and Banc of America Securities LLC (collectively, “Bank of America”) that all
fees payable on the Closing Date to Bank of America pursuant to the Fee Letter dated August
21, 2009, among the U.S. Borrower and Bank of America have been paid;




     (i) the U.S. Borrower shall have paid all fees and expenses (including without
limitation all fess and expenses of U.S. counsel and Canadian counsel to the Administrative
Agent) of the Administrative Agent incurred in connection with this Agreement and the
transactions contemplated hereby for which an invoice has been submitted to the U.S.
Borrower;




     (j) the Administrative Agent shall have received a summary of the results of searches
against the current name of the Canadian Borrower (as confirmed by a certificate of status)
conducted under the Personal Property Security Act in effect in the provinces of Nova
Scotia, Ontario and Alberta (collectively, the “PPSA”), the Register of Personal and Movable
Real Rights (Quebec), the Execution Act in the provinces of Nova
Scotia, Ontario, Alberta and Quebec, the Bank Act (Canada) in the provinces of Nova Scotia,
Ontario, Quebec and Alberta and the Bankruptcy and Insolvency Act (Canada), evidencing the
absence of Liens on its property except as permitted by Section 8.8 hereof;




     (k) no material adverse change in the business, financial condition, operations, assets
or Properties of the Borrowers and their Subsidiaries taken as a whole shall have occurred
since April 30, 2009;



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     (l) the Administrative Agent shall have received financing statement, tax, and judgment
lien search results against the Property of the U.S. Borrower and each Domestic Subsidiary
which is a Guarantor evidencing the absence of Liens on its Property except as permitted by
Section 8.8 hereof;




     (m) the Administrative Agent shall have received the favorable written opinion of
counsel to each Borrower and each Guarantor, in form and substance satisfactory to the
Administrative Agent;




     (n) the Administrative Agent shall have received a fully executed Internal Revenue
Service Form W-9 for the U.S. Borrower; and




     (o) the Administrative Agent shall have received such other agreements, instruments,
documents, certificates, and opinions as the Administrative Agent may have reasonably
requested at least two Business Days in advance of the Closing Date.



Section 8. Covenants.




     Each Borrower agrees that, so long as any credit is available to or in use by any Borrower
hereunder, except to the extent compliance in any case or cases is waived in writing pursuant to
the terms of Section 13.13 hereof:



     Section 8.1. Maintenance of Business. Each Borrower shall, and shall cause each Subsidiary
to, preserve and maintain its existence, except as otherwise provided in Section 8.10 hereof. Each
Borrower shall, and shall cause each Subsidiary to, take all reasonable actions to preserve and
keep in force and effect all licenses, permits, franchises, approvals, patents, trademarks, trade
names, trade styles, copyrights, and other proprietary rights necessary to the proper conduct of
its business where the failure to do so would reasonably be expected to have a Material Adverse
Effect.



     Section 8.2. Maintenance of Properties. Each Borrower shall, and shall cause each Subsidiary
to, maintain, preserve, and keep its property, plant, and equipment in good repair, working order
and condition (ordinary wear and tear excepted), provided that the Borrowers and their Subsidiaries
may discontinue the operations and maintenance of their properties if such discontinuance is
desirable in the conduct of their business and such discontinuance would not reasonably be expected
to have a Material Adverse Effect.



     Section 8.3. Taxes and Assessments. Each Borrower shall duly pay and discharge, and shall
cause each Subsidiary to duly pay and discharge, all material taxes, rates, assessments, fees, and
governmental charges upon or against it or its Property, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the extent that the same are being
contested in good faith and by appropriate proceedings which prevent enforcement of the matter
under contest and adequate reserves in accordance with GAAP are provided therefor or to the extent
that such failure would not reasonably be expected to result in a Material Adverse Effect.



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     Section 8.4. Insurance. Each Borrower shall insure and keep insured, and shall cause each
Subsidiary to insure and keep insured all insurable Property owned by it which is of a character
usually insured by Persons similarly situated and operating like Properties against loss or damage
from such hazards and risks, and in such amounts, as are insured by Persons similarly situated and
operating like Properties; and each Borrower shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks as and to the extent usually insured by Persons similarly
situated and conducting similar businesses.



     Section 8.5. Financial Reports. The U.S. Borrower shall, and shall cause each Subsidiary to,
maintain true and complete books of record and account, in which appropriate entries in conformity
with GAAP in accordance with customary business practice shall be made; and shall furnish to the
Administrative Agent such information respecting the business and financial condition of the U.S.
Borrower and its Subsidiaries as the Administrative Agent may reasonably request; and without any
request, shall furnish to the Administrative Agent, the Lenders, and L/C Issuer:




     (a) as soon as available, and in any event no later than 45 days after the last day of
the first three fiscal quarters of each fiscal year of the U.S. Borrower, a copy of the
consolidated balance sheet of the U.S. Borrower and its Subsidiaries as of the last day of
such fiscal quarter and the consolidated statements of income, changes in shareholders’
equity, and cash flows of the U.S. Borrower and its Subsidiaries for the fiscal quarter and
for the fiscal year-to-date period then ended, each in reasonable detail showing in
comparative form the figures for the corresponding date and period in the previous fiscal
year, prepared by the U.S. Borrower in accordance with GAAP (subject to the absence of
footnote disclosures and year-end audit adjustments) and certified to by its chief financial
officer or another officer of the U.S. Borrower acceptable to the Administrative Agent;




     (b) as soon as available, and in any event no later than 90 days after the last day of
each fiscal year of the U.S. Borrower, a copy of the consolidated balance sheet of the U.S.
Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the
consolidated statements of income, retained earnings, and cash flows of the U.S. Borrower
and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in
reasonable detail showing in comparative form the figures for the previous fiscal year,
accompanied by an unqualified opinion of Ernst & Young LLP or another firm of independent
public accountants of recognized national standing, selected by the U.S. Borrower, to the
effect that the consolidated financial statements have been prepared in accordance with GAAP
and present fairly in all material respects in
accordance with GAAP the consolidated financial condition of the U.S. Borrower and its
Subsidiaries as of the close of such fiscal year and the results of their operations and
cash flows for the fiscal year then ended and that an examination of such accounts in
connection with such financial statements has been made in accordance with generally
accepted auditing standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were considered necessary in the
circumstances;



          (c) notice of any Change of Control;



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     (d) promptly after knowledge thereof of any Borrower, written notice of (i) any pending
litigation or governmental or arbitration proceeding or labor controversy against any
Borrower or any Subsidiary or any of their Property which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect or (ii) the occurrence of any
Default or Event of Default hereunder; and




     (e) with each of the financial statements delivered pursuant to subsections (a) and (b)
above, a written certificate in the form attached hereto as Exhibit E signed by the chief
financial officer of the Borrowers or another officer of the Borrowers acceptable to the
Administrative Agent to the effect that no Default or Event of Default has occurred during
the period covered by such statements or, if any such Default or Event of Default has
occurred during such period, setting forth a description of such Default or Event of Default
and specifying the action, if any, taken by any Borrower or any Subsidiary to remedy the
same. Such certificate shall also set forth the calculations supporting such statements in
respect of Section 8.20 hereof.


Delivery within period specified above in clauses (a) and (b) of the U.S. Borrower’s quarterly
report on Form 10-Q (with respect to clause (a)) or annual report on Form 10-K (with respect to
clause (b)), in each case, prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to have satisfied the requirements of clause (a)
or (b) above, as applicable. The U.S. Borrower will be deemed to have made such delivery it has
timely made such Form 10-Q or 10-K, as applicable, available on “EDGAR” and on its homepage on the
worldwide web (at the date of this Agreement located at www.smucker.com) and shall have given the
Administrative Agent prior notice (which shall contain an electronic link to the location on EDGAR
or the U.S. Borrower’s homepage on the worldwide web where such forms are located) of such
availability on EDGAR and on its home page in connection with each delivery. The Borrowers may
comply with the requirements of the other clauses of this Section 8.5 by publishing such statements
and reports on its internet web site or another accessible electronic database and giving the
Administrative Agent notice (which shall contain an electronic link to the location on EDGAR or the
U.S. Borrower’s homepage on the worldwide web where such forms are located) thereof.




     Section 8.6. Inspection. Each Borrower shall, and shall cause each Loan Party to, permit the
Administrative Agent and the L/C Issuer (if there are any Letters of Credit outstanding), and each
of their duly authorized representatives and agents to visit and inspect any of its Property,
corporate books, and financial records, to examine and
make copies of its books of accounts and other financial records, and to discuss its affairs,
finances, and accounts with, its officers having responsibility for the matters being discussed and
independent public accountants (and by this provision each Borrower hereby authorizes such
accountants to discuss with the Administrative Agent and L/C Issuer the finances and affairs of
such Borrower and its Subsidiaries) at such reasonable times and intervals as the Administrative
Agent or any such Lender or L/C Issuer may designate and, so long as no Event of Default exists,
with reasonable prior notice to the relevant Borrower.



     Section 8.7. Borrowings and Guaranties. No Borrower shall, nor shall it permit any Subsidiary
to, issue, incur, assume, create or have outstanding any Debt, or incur liabilities for



-50-









 




interest
rate, currency, or commodity cap, collar, swap, or similar hedging arrangements, or be or become
liable as endorser, guarantor, surety or otherwise for any debt, obligation or undertaking of any
other Person (including any Borrower or Subsidiary) in respect of Debt, or otherwise agree to
provide funds for payment of the obligations of another in respect of Debt, or supply funds thereto
or invest therein or otherwise assure a creditor in respect of Indebtedness for Borrowed Money of
another against loss, or apply for or become liable to the issuer of a letter of credit which
supports an obligation of another; provided, however, that the foregoing shall not restrict nor
operate to prevent:





     (a) the Obligations of the Borrowers and the Guarantors owing to the Administrative
Agent and the Lenders (and their Affiliates);




     (b) obligations of any Borrower or any Subsidiary arising out of interest rate, foreign
currency, and commodity hedging agreements entered into with financial institutions in
connection with bona fide hedging activities in the ordinary course of business and not for
speculative purposes;




     (c) endorsement of items for deposit or collection of commercial paper received in the
ordinary course of business;




     (d) intercompany advances from time to time owing by any Subsidiary to any Borrower or
another Subsidiary or by any Borrower to a Subsidiary in and guarantees and similar
undertakings by a Borrower or a Subsidiary in respect of such obligations of any other
Borrower or Subsidiary;




     (e) Debt and guaranties outstanding (or commitments existing) on the date hereof and
listed on Schedule 8.7 and any refinancings, refundings, renewals or extensions thereof;
provided that the principal amount of such Debt and guaranties is not increased at the time
of such refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder;




     (f) Debt of any Person that becomes a Subsidiary of a Borrower after the date hereof in
accordance with the terms of Section 8.9, which Debt is existing at the time
such Person becomes a Subsidiary of a Borrower (other than Debt incurred solely in
contemplation of such Person’s becoming a Subsidiary of a Borrower);




     (g) Priority Debt in an aggregate amount not to exceed 15% of Consolidated Total
Capitalization as of the most recently ended fiscal quarter of the U.S. Borrower at any
time; and




     (h) indebtedness of the U.S. Borrower, the Canadian Borrower or any Subsidiary
Guarantor not otherwise permitted by this Section, provided that after the incurrence
thereof the U.S. Borrower is in compliance on a pro forma basis with Section 8.20(a) hereof.



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     Section 8.8. Liens. No Borrower shall, nor shall it permit any Subsidiary to, create, incur
or permit to exist any Lien of any kind on any Property owned by any such Person; provided,
however, that the foregoing shall not apply to nor operate to prevent:




     (a) Liens arising by statute in connection with worker’s compensation, unemployment
insurance, old age benefits, social security obligations, taxes, assessments, statutory
obligations or other similar charges (other than Liens arising under (i) ERISA or (ii) any
Canadian federal and provincial pension laws unless such Lien arises or persists in the
normal course of the funding or administration of a Canadian Pension Plan incompliance with
applicable law), good faith cash deposits in connection with tenders, contracts or leases to
which any Borrower or any Subsidiary is a party or other cash deposits required to be made
in the ordinary course of business, provided in each case that the obligation is not for
borrowed money;




     (b) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens
arising in the ordinary course of business;




     (c) judgment liens and judicial attachment liens not constituting an Event of Default
under Section 9.1(g) hereof and the pledge of assets for the purpose of securing an appeal,
stay or discharge in the course of any legal proceeding;




     (d) any interest or title of a lessor under any operating lease;




     (e) easements, rights-of-way, restrictions, and other similar encumbrances against real
property incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not materially detract from the value of the Property
subject thereto or materially interfere with the ordinary conduct of the business of any
Borrower or any Subsidiary;




     (f) Liens existing on the date hereof and any renewals or extensions thereof, provided
that (i) the Property covered thereby is not changed, (ii) the amount secured or benefited
thereby is not increased except as contemplated by Section 8.7(e), (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) any renewal
or extension of the obligations secured or benefited thereby is permitted by Section 8.7(e);




     (g) Liens on Property of a Person existing at the time such Person is merged into or
consolidated with a Borrower or any Subsidiary of a Borrower or becomes a Subsidiary of a
Borrower; provided that such Liens were not created in contemplation of such merger,
consolidation or investment and do not extend to any assets other than those of the Person
merged into or consolidated with such Borrower or such Subsidiary or acquired by such
Borrower or such Subsidiary, and the applicable Indebtedness for Borrowed Money secured by
such Lien is permitted under Section 8.7(f);



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     (h) reservations and exceptions relating to Property in Canada contained or implied by
statute in the original disposition from the Crown in right of Canada and grants made by the
Crown in right of Canada of interests so reserved or accepted;




     (i) Liens securing intercompany advances permitted by Section 8.7(d) to the extent
solely in favor of a Borrower or a Subsidiary; and




     (j) Liens not otherwise permitted hereby securing indebtedness permitted by this
Section 8.8, provided that the aggregate principal amount of Priority Debt plus (without
duplication) the aggregate principal amount of indebtedness secured by a Lien pursuant to
this clause (j) will not exceed 15% of Consolidated Total Capitalization as of the most
recently ended fiscal quarter of the U.S. Borrower at any time.



     Section 8.9. Acquisitions; Intercompany Investments, Loans and Advances. No Borrower shall,
nor shall it permit any Subsidiary to, directly or indirectly, make, retain or have outstanding any
investments (whether through purchase of stock or obligations or otherwise) in, or loans or
advances to (other than for travel advances and other similar cash advances made to employees in
the ordinary course of business), any other Borrower or Subsidiary, or acquire all or substantially
all of the assets or business of any other Person or division thereof; provided, however, that the
foregoing shall not apply to nor operate to prevent:




     (a) each Borrower’s investments from time to time in its Subsidiaries (including the
formation of new subsidiaries), and investments made from time to time by a Subsidiary in
one or more of its Subsidiaries (including the formation of new subsidiaries);




     (b) intercompany advances made from time to time by any Borrower or a Subsidiary to
another Borrower or Subsidiary or by a Subsidiary to a Borrower; and




     (c) Permitted Acquisitions.



     Section 8.10. Mergers, Consolidations and Sales. No Borrower shall, nor shall it permit any
Subsidiary to, be a party to any merger, amalgamation, consolidation, arrangement or reorganization
or sell,
transfer, lease or otherwise dispose of all or any part of its Property, including any disposition
of Property as part of a sale and leaseback transaction other than in the ordinary course of
business; provided, however, that this Section shall not apply to nor operate to prevent:




     (a) the sale, transfer, lease or other disposition of Property of (i) any Borrower and
any Wholly owned Subsidiary to one another and (ii) any Borrower or Subsidiary to another
for fair value;




     (b) the sale, transfer, lease or other disposition of Property of any Subsidiary that
is neither a Borrower nor a Guarantor and any other Subsidiary that is neither a Borrower
nor a Guarantor to one another;



-53-









 






     (c) any Subsidiary may merge or amalgamate with (i) a Borrower, provided that (A) if
the Subsidiary is merging with the US Borrower, such Borrower shall be the continuing or
surviving Person and (B) if such Subsidiary is amalgamating with the Canadian Borrower, the
amalgamated corporation resulting from such amalgamation shall deliver a written
confirmation to the Administrative Agent confirming that it is subject to all of the
Obligations of the Canadian Borrower hereunder, or (ii) any one or more other Subsidiaries,
provided that when any Wholly owned Subsidiary is merging or amalgamating with another
Subsidiary, the Wholly owned Subsidiary shall be the continuing or surviving Person;




     (d) in connection with any acquisition permitted under Section 8.9, any Borrower and
any Subsidiary of a Borrower may merge or amalgamate into or consolidate with any other
Person or permit any other Person to merge or amalgamate into or consolidate with it;
provided that the Person surviving such merger, amalgamation or consolidation shall be a
Borrower or a Subsidiary of such Borrower, or in the case of the Canadian Borrower, the
amalgamated corporation resulting from such amalgamation shall deliver a written
confirmation to the Administrative Agent confirming that it is subject to all of the
Obligations of the Canadian Borrower hereunder;




     (e) sale, transfer or other disposition of any equipment or real property to the extent
that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such sale, transfer or other disposition are
reasonably promptly applied to the purchase price of such replacement property;




     (f) non-exclusive licenses of intellectual property rights;




     (g) any Subsidiary may dissolve, liquidate or otherwise terminate its existence, or may
reincorporate or reorganize in another jurisdiction, if the U.S. Borrower determines that
such action is consistent with the interests of the U.S. Borrower and its Subsidiaries taken
as a whole; and




     (h) any Borrower or any Subsidiary may sell, lease, transfer or otherwise dispose of
any assets to any Person so long as (i) such disposition is for fair market value (as
determined by such Borrower or Subsidiary); and (ii) the aggregate amount of all such
dispositions pursuant to this subsection (g) for all of the Borrowers and Subsidiaries does
not exceed, for the most recently completed four fiscal quarters of U.S. Borrower, an amount
equal to fifteen percent (15%) of Consolidated Total Assets for the most recently completed
fiscal year of U.S. Borrower; provided, however, that if the proceeds hereof are intended to
be used to repay Indebtedness for Borrowed Money or to acquire property useful in the
business of the U.S. Borrower and its Subsidiaries within three hundred sixty-five (365)
days, then such sale, lease, transfer or other disposition shall be excluded for the
purposes of determining compliance with this clause (g) or hereof.



     Section 8.11. Dividends and Certain Other Restricted Payments. No Borrower shall, nor shall
it permit any Subsidiary to, (a) declare or pay any dividends on or make any other distributions in
respect of any class or series of its capital stock or other equity interests (other



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than dividends
or distributions payable solely in its capital stock or other equity interests), or (b) directly or
indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other
equity interests or any warrants, options, or similar instruments to acquire the same,
(collectively referred to herein as “Restricted Payments”); provided, however, that (a) the
foregoing shall not operate to prevent the making of dividends or distributions by any Subsidiary
to any other Subsidiary or to a Borrower, and (b) the U.S. Borrower may declare or pay any
Restricted Payment so long as both immediately prior to and after such declaration or payment no
Event of Default shall exist.




     Section 8.12. Benefit Plans. (a) ERISA. Each Borrower shall, and shall cause each ERISA
Affiliate to, promptly pay and discharge all obligations and liabilities arising under ERISA of a
character which if unpaid or unperformed would reasonably be expected to result in the imposition
of a Lien against any of its Property and have a Material Adverse Effect. Each Borrower shall, and
shall cause ERISA Affiliate to, promptly notify the Administrative Agent and each Lender of: (a)
the occurrence of any Reportable Event with respect to a Pension Plan, (b) receipt of any notice
from the PBGC of its intention to seek termination of any Pension Plan or appointment of a trustee
therefor, (c) its intention to terminate or withdraw from any Pension Plan, and (d) the occurrence
of any event with respect to any Plan which would result in the incurrence by such Borrower or any
ERISA Affiliate of any liability, fine or penalty, or any increase in the contingent liability of
such Borrower or any ERISA Affiliate with respect to any post-retirement Welfare Plan benefit,
that, in any such case, would reasonably be expected to have a Material Adverse Effect.



     (b) Canadian Pension Plans and Benefit Plans.




     (i) For each existing, or hereafter adopted, Canadian Pension Plan and Canadian Benefit
Plan, each Borrower and its Subsidiaries shall in a timely fashion comply with and perform
in all material respects all of their statutory obligations under and in respect of such
Canadian Pension Plan or Canadian Benefit Plan, including under any funding agreements and
all applicable laws (including any fiduciary, funding, investment and administration
obligations).



     (ii) All employer or employee payments, contributions or premiums required to be
remitted, paid to or in respect of each Canadian Pension Plan or Canadian Benefit Plan shall
be paid or remitted by any Borrower or its Subsidiary in a timely fashion in accordance with
the terms thereof, any funding agreements and all applicable laws. Each Borrower and its
Subsidiaries shall also ensure that within 30 days after (A) the timely filing of an
actuarial valuation report required to be filed under Canadian pension legislation, or (B)
the rendering of an actuarial valuation report commissioned at the request of any Borrower
or its subsidiaries (a “New Valuation Report”), which New Valuation Report identifies a
going concern or solvency deficit (using actuarial methods and assumptions which are
consistent with the valuations last filed with the applicable Governmental Authorities and
with generally accepted actuarial principles) that is greater than the corresponding going
concern or solvency deficit disclosed in Schedule 6.15(b) (the “Increased Deficit”), where
such Increased Deficit would reasonably be expected to have a Material Adverse Effect, the
difference between the Increased Deficit and the



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corresponding deficit disclosed in Schedule
6.15 shall be liquidated so as to bring the level of such deficit to a level equal to any
corresponding deficit disclosed in Schedule 6.15(b) .




     (iii) Except as disclosed in Schedule 6.15(b), where it would reasonably be expected to
have a Material Adverse Effect, (i) no Canadian Benefit Plans shall be an unfunded or
self-insured plan; and (ii) no Borrower or Subsidiary shall increase its unfunded position
in respect of such Canadian Benefit Plan disclosed in 6.15(b)




     (iv) Except as disclosed in Schedule 6.15(b), no Borrower or any of their Subsidiaries
shall have any liability in respect of a multi-employer pension plan as that term is defined
in the relevant Canadian pension legislation.




     (v) Each Borrower or its Subsidiary shall deliver to the Administrative Agent (A) if
requested by the Administrative Agent, copies of each annual and other return, report or
valuation with respect to each Canadian Pension Plan as filed with any applicable
Governmental Authority or as commissioned by such Borrower or its Subsidiary; (B) promptly
after receipt thereof, a copy of any material claim direction, order, notice, ruling or
opinion that any Borrower or any Subsidiary may receive from any applicable Governmental
Authority or other claimant except for regular claims for benefits with respect to any
Canadian Pension Plan or Canadian Benefit Plan; and (C) notification within thirty (30) days
of any increases having a cost to any Borrower or any Subsidiary in excess of One Hundred
Fifty Thousand Dollars ($150,000) per annum in the aggregate, in respect of any existing
Canadian Pension Plan or Canadian Benefit Plan, or the establishment of any new Canadian
Pension Plan or Canadian Benefit Plan, or the commencement of contributions to any such plan
to which any Borrower or any Subsidiary was not previously contributing.



     Section 8.13. Compliance with Laws. Each Borrower shall, and shall cause each Subsidiary to,
comply in all material respects with the requirements of all federal, state, provincial, and local
laws, rules, regulations, ordinances and orders applicable to or pertaining to its Property or
business operations, except in such
instances in which (a) such requirement of law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to
comply therewith would not reasonably be expected to have a Material Adverse Effect.



     Section 8.14. Compliance with OFAC Sanctions Programs. (a) Each Borrower shall at all times
comply with the requirements of all United States and Canadian export control, trade and commerce
laws (including without limitation the OFAC Sanctions Programs) applicable to such Borrower and
shall cause each of its Subsidiaries to comply with the requirements of all United States and
Canadian export control, trade and commerce laws applicable to such Subsidiary.



     (b) Each Borrower shall provide the Administrative Agent, the L/C Issuer, and the Lenders any
information regarding such Borrower, its Affiliates, and its Subsidiaries necessary for the
Administrative Agent, the L/C Issuer, and the Lenders to comply with all applicable



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United States
and Canadian export control, trade and commerce laws (including without limitation the OFAC
Sanctions Programs); subject however, in the case of Affiliates, to such Borrower’s ability to
provide information applicable to them.




     (c) If any Borrower obtains actual knowledge or receives any written notice that such
Borrower, any Affiliate or any Subsidiary is named on the then current OFAC SDN List (such
occurrence, an “OFAC Event”), such Borrower shall promptly (i) give written notice to the
Administrative Agent, the L/C Issuer, and the Lenders of such OFAC Event, and (ii) comply with all
applicable laws with respect to such OFAC Event (regardless of whether the party included on the
OFAC SDN List is located within the jurisdiction of the United States of America), including the
United States and Canadian export control, trade and commerce laws (including without limitation
the OFAC Sanctions Programs), and each Borrower hereby authorizes and consents to the
Administrative Agent, the L/C Issuer, and the Lenders taking any and all steps the Administrative
Agent, the L/C Issuer, or the Lenders deem necessary, in their sole but reasonable discretion, to
avoid violation of all applicable laws with respect to any such OFAC Event, including the
requirements of the United States and Canadian export control, trade and commerce laws (including
without limitation the OFAC Sanctions Programs) (including the freezing and/or blocking of assets
and reporting such action to OFAC).



     Section 8.15. Burdensome Contracts With Affiliates. Except as otherwise permitted hereunder,
no Borrower shall, nor shall it permit any Subsidiary to, enter into any contract, agreement or
business arrangement with any of its Affiliates on terms and conditions which are, taken as a
whole, materially less favorable to the Borrower or such Subsidiary than would be usual and
customary in similar contracts, agreements or business arrangements between Persons not affiliated
with each other; provided however that the foregoing shall not prohibit (a) the payment of
customary and reasonable directors’ fees to directors who are not employees of any Borrower or any
of their Subsidiaries or an Affiliate, (b) any transaction between a Borrower or a Guarantor and an
Affiliate that is a Borrower or a Guarantor which the U.S. Borrower reasonably determines in good
faith is beneficial to the U.S. Borrower and is Subsidiaries taken as a whole and which is not
entered into for the purpose of hindering the exercise by the Administrative Agent or the Lenders
of any rights or remedies under this Agreement, (c) any employment agreement,
employee benefit plan, stock option plan, officer and director indemnification agreement or any
similar arrangement entered into by any Borrower or any Subsidiary in the ordinary course of
business, or (d) loans to employees or officers in the ordinary course of business.



     Section 8.16. No Changes in Fiscal Year. The fiscal year of the Borrowers and their
Subsidiaries ends on April 30 of each year; and no Borrower shall, nor shall it permit any
Subsidiary to, change its fiscal year from its present basis.



     Section 8.17. Change in the Nature of Business. No Borrower shall, nor shall it permit any
Subsidiary to, engage in any material line of business if as a result thereof the general nature of
the business conducted by the U.S. Borrower and its Subsidiaries would be substantially changed
from the general nature of the business conducted by the U.S. Borrower and its Subsidiaries on the
date hereof (it being understood and agreed that any business which is in the food and beverage
industry shall not violate this Section 8.17).




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     Section 8.18. Use of Proceeds. Each Borrower shall use the credit extended to it under this
Agreement solely for the purposes set forth in, or otherwise permitted by, Section 6.4 hereof.



     Section 8.19. No Restrictions. Except as provided herein, no Borrower shall, nor shall it
permit any Subsidiary to, directly or indirectly create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the ability of such
Borrower or any Subsidiary to: (a) pay dividends or make any other distribution on any
Subsidiary’s capital stock or other equity interests owned by such Borrower or any other
Subsidiary, (b) pay any indebtedness owed to a Borrower or any other Subsidiary, (c) make loans or
advances to any Borrower or any other Subsidiary, (d) transfer any of its Property to any Borrower
or any other Subsidiary, or (e) guarantee the Obligations as required by the Loan Documents, except
for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii)
customary non-assignment provisions in leases or other agreement entered into in the ordinary
course of business and consistent with past practices, or (iii) customary restrictions in security
agreements or mortgages securing Indebtedness for Borrowed Money of any Borrower or any of their
Subsidiaries, or any Capital Lease, of any Borrower or any Subsidiary to the extent such
restrictions shall only restrict the transfer of the Property subject to such agreement, mortgage
or Capital Lease.



     Section 8.20. Financial Covenants. (a) Total Leverage Ratio. As of the last day of each
fiscal quarter of the Borrowers, the Borrowers shall not permit the Total Leverage Ratio to be
greater than 3.5 to 1.



     (b) Interest Coverage Ratio. As of the last day of each fiscal quarter of the Borrowers, the
Borrowers shall not permit the Interest Coverage Ratio to be less than 3.5 to 1.



     Section 8.21. Other Covenants. In the event that after the date hereof any Borrower or any
Guarantor shall enter into, or shall have entered into, any agreement regarding Indebtedness for
Borrowed Money in a principal amount in excess of $100,000,000, which contain Financial Covenants
that are not contained herein or that are more restrictive than the Financial Covenants set forth
herein, then the Borrowers and the Guarantors shall be bound hereunder by such more restrictive
Financial Covenants with the same force and effect as if such covenants were written herein. For
purposes of this Section 8.21, “Financial Covenant” means any covenant or equivalent provision
(including, without limitation, any default or event of default provision and definitions of
defined terms used therein) requiring the U.S. Borrower (a) to maintain any level of financial
performance (including, without limitation, a specified level of net worth, total assets, cash flow
or net income), (b) not to exceed any maximum level of indebtedness, (c) to maintain any
relationship of any component of its capital structure to any other component thereof (including,
without limitation, the relationship of indebtedness, senior indebtedness or subordinated
indebtedness to total capitalization or to net worth), or (d) to maintain any measure of its
ability to service its indebtedness (including, without limitation, falling below any specified
ratio of revenues, cash flow or net income to interest expense, rental expense, capital
expenditures and/or scheduled payments of indebtedness).



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Section 9. Events of Default and Remedies.




     Section 9.1. Events of Default. Any one or more of the following shall constitute an “Event
of Default” hereunder:




     (a) default in the payment when due of all or any part of the principal of any Loan
(whether at the stated maturity thereof or at any other time provided for in this Agreement)
or of any Reimbursement Obligation, or default for a period of five (5) Business Days in the
payment when due of any interest, fee or other Obligation payable hereunder or under any
other Loan Document;




     (b) default in the observance or performance of any covenant set forth in Sections 8.5,
8.7, 8.8, 8.9, 8.10, 8.11, 8.15, 8.17, 8.18, 8.19 or 8.20 hereof;




     (c) default in the observance or performance of any other provision hereof or of any
other Loan Document which is not remedied within 30 days after the earlier of (i) the date
on which such failure shall first become known to any officer of the Borrower or (ii)
written notice thereof is given to any Borrower by the Administrative Agent;




     (d) any representation or warranty made herein or in any other Loan Document or in any
certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto
or in connection with any transaction contemplated hereby or thereby proves untrue in any
material respect as of the date of the issuance or making or deemed making thereof;




     (e) any of the Loan Documents shall for any reason not be or shall cease to be in full
force and effect or is declared to be null and void, or any Loan Party takes any action for
the purpose of terminating, repudiating or rescinding any Loan Document executed by it or
any of its obligations thereunder;




     (f) default shall occur under any Indebtedness for Borrowed Money issued, assumed or
guaranteed by any Borrower or any Subsidiary aggregating in excess of $60,000,000, or under
any indenture, agreement or other instrument under which the same may be issued, and such
default shall continue for a period of time sufficient to permit the acceleration of the
maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in
fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due
(whether by demand, lapse of time, acceleration or otherwise);




     (g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or
any similar process or processes, shall be entered or filed against any Borrower or any
Subsidiary, or against any of its Property, in an aggregate amount in excess of $60,000,000
(except to the extent fully covered by insurance), and which remains undischarged,
unvacated, unbonded or unstayed for a period of 30 days;



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     (h) an ERISA Event occurs with respect to a pension benefit plan, a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of the Borrower under ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount which would be expected to result in a Material Adverse Effect;




     (i) any Change of Control shall occur;




     (j) any Borrower or any Subsidiary shall (i) have entered involuntarily against it an
order for relief under the United States Bankruptcy Code, as amended, the Bankruptcy and
Insolvency Act (Canada), as amended, or the Companies Creditors Arrangement Act (Canada), as
amended, or the Winding-Up and Restructuring Act (Canada), as amended, (ii) not pay, or
admit in writing its inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in,
the appointment of a receiver, receiver and manager, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its Property, (v) institute
any proceeding seeking to have entered against it an order for relief under the United
States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material allegations of any
such proceeding filed against it, (vi) take any corporate action in furtherance of any
matter described in parts (i) through (v) above, or (vii) fail to contest in good faith and
with continued due diligence any appointment or proceeding described in Section 9.1(k)
hereof;




     (k) a custodian, receiver, receiver and manager, trustee, examiner, liquidator or
similar official shall be appointed for any Borrower or any Subsidiary, or any substantial
part of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be
instituted against any Borrower or any Subsidiary, and such appointment is not immediately
contested in good faith and with continued due diligence continues undischarged or such
proceeding is not immediately contested in good faith and with continued due diligence and
continues undismissed or unstayed for a period of 60 days; or




     (l) The Canadian Borrower shall fail to make a payment pursuant to a requirement from
the Canada Revenue Agency pursuant to Section 224 or any successor section of the Income Tax
Act (Canada) or Section 317 or any successor section of the Excise Tax Act (Canada) or any
comparable provision of similar legislation shall have been received by the Administrative
Agent or any Lender and is not satisfied by the Canadian Borrower or withdrawn within 10
days.



     Section 9.2. Non-Bankruptcy Defaults. When any Event of Default (other than those described
in subsection (j) or (k) of Section 9.1 hereof with respect to any Borrower) has occurred and is
continuing, the Administrative Agent shall, by written notice to the Borrowers: (a) if so directed
by the Required Lenders, terminate the remaining Revolving Credit



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Commitments and all other obligations of the Lenders hereunder on
the date stated in such notice (which may be the date thereof); (b) if so directed by the Required
Lenders, declare the principal of and the accrued interest on all outstanding Loans to be forthwith
due and payable and thereupon all outstanding Loans, including both principal and interest thereon,
shall be and become immediately due and payable together with all other amounts payable under the
Loan Documents without further demand, presentment, protest or notice of any kind; and (c) if so
directed by the Required Lenders, demand that each Borrower immediately pay to the Administrative
Agent the full amount then available for drawing under each or any Letter of Credit issued for such
Borrower’s account hereunder, and each Borrower agrees to immediately make such payment and
acknowledges and agrees that the Lenders would not have an adequate remedy at law for failure by
such Borrower to honor any such demand and that the Administrative Agent, for the benefit of the
Lenders, shall have the right to require such Borrower to specifically perform such undertaking
whether or not any drawings or other demands for payment have been made under any Letter of Credit.
The Administrative Agent, after giving notice to any Borrower pursuant to Section 9.1(c) or this
Section 9.2, shall also promptly send a copy of such notice to the other Lenders, but the failure
to do so shall not impair or annul the effect of such notice.



     Section 9.3. Bankruptcy Defaults. When any Event of Default described in subsections (j) or
(k) of Section 9.1 hereof with respect to any Borrower has occurred and is continuing, then all
outstanding Loans shall immediately become due and payable together with all other amounts payable
under the Loan Documents without presentment, demand, protest or notice of any kind, the obligation
of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately
terminate and each Borrower shall immediately pay to the Administrative Agent the full amount then
available for drawing under all outstanding Letters of Credit issued for such Borrower’s account
hereunder, each Borrower acknowledging and agreeing that the Lenders would not have an adequate
remedy at law for failure by such Borrower to honor any such demand and that the Lenders, and the
Administrative Agent on their behalf, shall have the right to require such Borrower to specifically
perform such undertaking whether or not any draws or other demands for payment have been made under
any of the Letters of Credit.



     Section 9.4. Collateral for Undrawn Letters of Credit. (a) If the prepayment of the amount
available for drawing under any or all outstanding Letters of Credit issued for the account of a
Borrower hereunder is required under Section 1.9(b), Section 1.15, Section 9.2 or Section 9.3
above, such Borrower shall forthwith pay the amount required to be so prepaid, to be held by the
Administrative Agent as provided in subsection (b) below.



     (b) All amounts prepaid pursuant to subsection (a) above shall be held by the Administrative
Agent in one or more separate collateral accounts (each such account, and the credit balances,
properties, and any investments from time to time held therein, and any substitutions for such
account, any certificate of deposit or other instrument evidencing any of the foregoing and all
proceeds of and earnings on any of the foregoing being collectively called the “Collateral
Account”) as security for, and for application by the Administrative Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit issued for the account of the Borrower that made such prepayment then or thereafter made by the



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L/C Issuer,
and to the payment of the unpaid balance of all other Obligations of such Borrower. The Collateral
Account shall be held in the name of and subject to the exclusive dominion and control of the
Administrative Agent for the benefit of the Administrative Agent, the Lenders, and the L/C Issuer.
If and when requested by the relevant Borrower, the Administrative Agent shall invest funds held in
the Collateral Account from time to time in direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United States of America with a
remaining maturity of one year or less, provided that the Administrative Agent is irrevocably
authorized to sell investments held in the Collateral Account when and as required to make payments
out of the Collateral Account for application to amounts due and owing from the Borrower to the L/C
Issuer, the Administrative Agent or the Lenders; provided, however, that (i) if any Borrower shall
have made payment of all obligations referred to in subsection (a) above required under Section
1.9(b) and Section 1.15 hereof, if any, at the request of such Borrower the Administrative Agent
shall release to such Borrower amounts held in the Collateral Account so long as at the time of the
release and after giving effect thereto no Default or Event of Default exists and, in the case of
Section 1.15 hereof, the Defaulting Lender Period with respect to the relevant Defaulting Lender
has terminated, and (ii) if any Borrower shall have made payment of all obligations referred to in
subsection (a) above required under Section 9.2 or 9.3 hereof, so long as no Letters of Credit,
Revolving Credit Commitments, Loans or other Obligations remain outstanding, at the request of such
Borrower the Administrative Agent shall release to such Borrower any remaining amounts prepaid by
such Borrower that are held in the Collateral Account.



     Section 9.5. Notice of Default. The Administrative Agent shall give notice to the Borrowers
under Section 9.1(c) hereof promptly upon being requested to do so by any Lender and shall
thereupon notify all the Lenders thereof.



Section 10. Change in Circumstances.




     Section 10.1. Change of Law. Notwithstanding any other provisions of this Agreement or any
other Loan Document, if at any time any change in applicable law or regulation or in the
interpretation thereof makes it unlawful for any Lender to make or continue to maintain any
Eurodollar Loans or CAD CDOR Loans or to perform its obligations as contemplated hereby, such
Lender shall promptly give notice thereof to the Borrowers and such Lender’s obligations to make or
maintain Eurodollar Loans under this Agreement shall be suspended until it is no longer unlawful
for such Lender to make or maintain Eurodollar Loans or CAD CDOR Loans. Each Borrower shall prepay
on demand the outstanding principal amount of any such affected Eurodollar Loans or CAD CDOR Loans
made to it, together with all interest accrued thereon and all other amounts then due and payable
to such Lender under this Agreement; provided, however, subject to all of the terms and conditions
of this Agreement, the U.S. Borrower may then elect to borrow the principal amount of the affected
Eurodollar Loans from such Lender by means of U.S. Base Rate Loans from such Lender, and the
Canadian Borrower may then elect to borrow the principal amount of the affected CAD CDOR Loans from
such Lender by means of a CAD Base Rate Loan from such Lender, which Loans shall not be made ratably by the Lenders but only from such affected Lender.



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     Section 10.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR or
CDOR Fixed Rate. If on or prior to the first day of any Interest Period for any Borrowing of
Eurodollar Loans or CAD CDOR Loans:




     (a) the Administrative Agent determines that deposits in U.S. Dollars or Canadian
Dollars (in the applicable amounts) are not being offered to it in the interbank market for
such Interest Period, or that by reason of circumstances affecting the relevant interbank
market adequate and reasonable means do not exist for ascertaining the applicable LIBOR or
CDOR Fixed Rate, or




     (b) the Required Lenders advise the Administrative Agent that (i) LIBOR or CDOR Fixed
Rate as determined by the Administrative Agent will not adequately and fairly reflect the
cost to such Lenders of funding their Eurodollar Loans or CAD CDOR Loans, respectively, for
such Interest Period or (ii) that the making or funding of Eurodollar Loans or CAD CDOR
Loans become impracticable,


then the Administrative Agent shall forthwith give notice thereof to the Borrowers and the Lenders,
whereupon until the Administrative Agent notifies the Borrowers that the circumstances giving rise
to such suspension no longer exist, the obligations of the Lenders to make Eurodollar Loans or CAD
CDOR Loans, as applicable, shall be suspended.




     Section 10.3. Increased Cost and Reduced Return. (a) If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Lender (or
its Lending Office) or the L/C Issuer with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:




     (i) shall subject any Lender (or its Lending Office) or the L/C Issuer to any tax, duty
or other charge with respect to its Eurodollar Loans, CAD CDOR Loans, its Notes, its
Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations owed
to it or its obligation to make Eurodollar Loans, CAD CDOR Loans, issue a Letter of Credit,
or to participate therein, or shall change the basis of taxation of payments to any Lender
(or its Lending Office) or the L/C Issuer of the principal of or interest on its Eurodollar
Loans, CAD CDOR Loans, Letter(s) of Credit, or participations therein or any other amounts
due under this Agreement or any other Loan Document in respect of its Eurodollar Loans, CAD
CDOR Loans, Letter(s) of Credit, any participation therein, any Reimbursement Obligations
owed to it, or its obligation to make Eurodollar Loans, CAD CDOR Loans, or issue a Letter of
Credit, or acquire participations therein (except for changes in the rate of tax on the
overall net income of such Lender or its
Lending Office or the L/C Issuer imposed by the jurisdiction in which such Lender’s or the
L/C Issuer’s principal executive office or Lending Office is located); or




     (ii) shall impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with respect to any



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Eurodollar Loans
any such requirement included in an applicable Eurodollar Reserve Percentage) against assets
of, deposits with or for the account of, or credit extended by, any Lender (or its Lending
Office) or the L/C Issuer or shall impose on any Lender (or its Lending Office) or the L/C
Issuer or on the interbank market any other condition affecting its Eurodollar Loans, its
Notes, its CAD CDOR Loans, its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligation owed to it, or its obligation to make Eurodollar Loans or CAD CDOR
Loans, or to issue a Letter of Credit, or to participate therein;


and the result of any of the foregoing is to increase the cost to such Lender (or its Lending
Office) or the L/C Issuer of making or maintaining any Eurodollar Loan or CAD CDOR Loans, issuing
or maintaining a Letter of Credit, or participating therein, or to reduce the amount of any sum
received or receivable by such Lender (or its Lending Office) or the L/C Issuer under this
Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender
or L/C Issuer to be material, then, within 15 days after demand by such Lender or L/C Issuer (with
a copy to the Administrative Agent), the Borrowers shall be obligated to pay to such Lender or L/C
Issuer such additional amount or amounts as will compensate such Lender or L/C Issuer for such
increased cost or reduction.




     (b) If, after the date hereof, any Lender, the L/ C Issuer, or the Administrative Agent shall
have determined that the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Lending Office) or the L/C Issuer or
any corporation controlling such Lender or L/C Issuer with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority, central bank or
comparable agency, has had the effect of reducing the rate of return on such Lender’s or L/C Issuer
‘s or such corporation’s capital as a consequence of its obligations hereunder to a level below
that which such Lender or L/C Issuer or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or L/C Issuer ‘s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender or L/C
Issuer to be material, then from time to time, within 15 days after demand by such Lender or L/C
Issuer (with a copy to the Administrative Agent), each Borrower shall pay in respect of Letters of
Credit issued for its account to such Lender or L/C Issuer, as applicable, such additional amount
or amounts as will compensate such Lender or L/C Issuer for such reduction.



     (c) A certificate of a Lender or L/C Issuer claiming compensation under this Section 10.3 and
setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive if
reasonably determined. In determining such amount, such Lender or L/C Issuer
may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, the
Borrowers shall not be obligated to compensate any Lender or L/C Issuer for any increased costs or
reductions incurred more than 90 days prior to the date the Lender or L/C Issuer, as the case may
be, notifies the Borrowers of its intention to claim compensation therefor.



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     Section 10.4. Lending Offices. Each Lender and L/C Issuer may, at its option, elect to make
its Loans and issue its Letters of Credit hereunder at the branch, office or affiliate specified on
the Administration Questionnaire provided by it to the Administrative Agent (each a “Lending
Office”) for each type of Loan available hereunder and for each Borrower hereunder or at such other
of its branches, offices or affiliates as it may from time to time elect and designate in a written
notice to the Borrowers and the Administrative Agent. All terms of this Agreement shall apply to
any such Lending Office and the Loans, Letters of Credit, participations in L/C Obligations and any
Notes issued hereunder shall be deemed held by each Lender or the L/C Issuer, as the case may be,
for the benefit of any such Lending Office. To the extent reasonably possible, a Lender shall
designate an alternative branch or funding office with respect to its Eurodollar Loans to reduce
any liability of the Borrowers to such Lender under Section 10.3 hereof or to avoid the
unavailability of Eurodollar Loans under Section 10.2 hereof, so long as such designation is not
otherwise disadvantageous to the Lender.



     Section 10.5. Discretion of Lender as to Manner of Funding. Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder with respect to Eurodollar Loans shall be
made as if each Lender had actually funded and maintained each Eurodollar Loan through the purchase
of deposits in the interbank eurodollar market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest Period.



Section 11. The Administrative Agent.




     Section 11.1. Appointment and Authorization of Administrative Agent. Each Lender and the L/C
Issuer hereby appoints Bank of Montreal as the Administrative Agent under the Loan Documents and
hereby authorizes the Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably incidental thereto. The
Lenders and L/C Issuer expressly agree that the Administrative Agent is not acting as a fiduciary
of the Lenders or the L/C Issuer in respect of the Loan Documents, the Borrowers or otherwise, and
nothing herein or in any of the other Loan Documents shall result in any duties or obligations on
the Administrative Agent or any of the Lenders or L/C Issuer except as expressly set forth herein.



     Section 11.2. Administrative Agent and its Affiliates. The Administrative Agent shall have
the same rights and powers
under this Agreement and the other Loan Documents as any other Lender and may exercise or refrain
from exercising such rights and power as though it were not the Administrative Agent, and the
Administrative Agent and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with any Borrower or any Affiliate of any Borrower as if it were not
the Administrative Agent under the Loan Documents. The term “Lender” as used herein and in all
other Loan Documents, unless the context otherwise clearly requires, includes the Administrative
Agent in its individual capacity as a Lender (if applicable).



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     Section 11.3. Action by Administrative Agent. If the Administrative Agent receives from any
Borrower a written notice of an Event of Default pursuant to Section 8.5 hereof, the Administrative
Agent shall promptly give each of the Lenders and L/C Issuer written notice thereof. The
obligations of the Administrative Agent under the Loan Documents are only those expressly set forth
therein. Without limiting the generality of the foregoing, the Administrative Agent shall not be
required to take any action hereunder with respect to any Default or Event of Default, except as
expressly provided in Sections 9.2 and 9.5. Unless and until the Required Lenders give such
direction, the Administrative Agent may (but shall not be obligated to) take or refrain from taking
such actions as it deems appropriate and in the best interest of all the Lenders and L/C Issuer.
In no event, however, shall the Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Loan Document, and the Administrative Agent shall in all
cases be fully justified in failing or refusing to act hereunder or under any other Loan Document
unless it first receives any further assurances of its indemnification from the Lenders that it may
require, including prepayment of any related expenses and any other protection it requires against
any and all costs, expense, and liability which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall be entitled to assume that no
Default or Event of Default exists unless notified in writing to the contrary by a Lender, the L/C
Issuer, or a Borrower. In all cases in which the Loan Documents do not require the Administrative
Agent to take specific action, the Administrative Agent shall be fully justified in using its
discretion in failing to take or in taking any action thereunder. Any instructions of the Required
Lenders, or of any other group of Lenders called for under the specific provisions of the Loan
Documents, shall be binding upon all the Lenders and the holders of the Obligations.



     Section 11.4. Consultation with Experts. The Administrative Agent may consult with legal
counsel, independent public accountants, and other experts selected by it and shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.



     Section 11.5. Liability of Administrative Agent; Credit Decision. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection with the Loan Documents: (i) with the consent or at the request
of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify: (i) any statement, warranty
or representation made in connection with this Agreement, any other Loan Document or any Credit
Event; (ii) the performance or observance of any of the covenants or agreements of any
Borrower or any Subsidiary contained herein or in any other Loan Document; (iii) the satisfaction
of any condition specified in Section 7 hereof, except receipt of items required to be delivered to
the Administrative Agent; or (iv) the validity, effectiveness, genuineness, enforceability,
perfection, value, worth or collectibility hereof or of any other Loan Document or of any other
documents or writing furnished in connection with any Loan Document; and the Administrative Agent
makes no representation of any kind or character with respect to any such matter mentioned in this
sentence. The Administrative Agent may execute any of its duties under any of the Loan Documents
by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders,
the L/C Issuer, the Borrowers, or



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any other Person for the default or misconduct of any such agents
or attorneys-in-fact selected with reasonable care. The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other document or statement
(whether written or oral) believed by it to be genuine or to be sent by the proper party or
parties. In particular and without limiting any of the foregoing, the Administrative Agent shall
have no responsibility for confirming the accuracy of any compliance certificate or other document
or instrument received by it under the Loan Documents. The Administrative Agent may treat the
payee of any Obligation as the holder thereof until written notice of transfer shall have been
filed with the Administrative Agent signed by such payee in form satisfactory to the Administrative
Agent. Each Lender and L/C Issuer acknowledges that it has independently and without reliance on
the Administrative Agent or any other Lender or L/C Issuer, and based upon such information,
investigations and inquiries as it deems appropriate, made its own credit analysis and decision to
extend credit to the Borrowers in the manner set forth in the Loan Documents. It shall be the
responsibility of each Lender and L/C Issuer to keep itself informed as to the creditworthiness of
any Borrower and its Subsidiaries, and the Administrative Agent shall have no liability to any
Lender or L/C Issuer with respect thereto.



     Section 11.6. Indemnity. The Lenders shall ratably, in accordance with their respective
Percentages, indemnify and hold the Administrative Agent, and its directors, officers, employees,
agents, and representatives harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Loan Document or in connection with the transactions
contemplated thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by any Borrower and except to the extent that any event giving
rise to a claim was caused by the gross negligence or willful misconduct of the party seeking to be
indemnified. The obligations of the Lenders under this Section shall survive termination of this
Agreement. The Administrative Agent shall be entitled to offset amounts received for the account
of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative
Agent, any L/C Issuer, or Swing Line Lender hereunder (whether as fundings of participations,
indemnities or otherwise, and with any amounts offset for the benefit of the Administrative Agent
to be held by it for its own account and with any amounts offset for the benefit of a L/C Issuer or
Swing Line Lender to be remitted by the Administrative Agent to of for the account of such L/C
Issuer or Swing Line Lender, as applicable), but shall not be entitled to offset against amounts
owed to the Administrative Agent, any L/C Issuer or Swing Line Lender by any Lender arising outside
of this Agreement and the other Loan Documents.



     Section 11.7. Resignation of Administrative Agent and Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to the Lenders, the
L/C Issuer, and the Borrowers. Upon any such resignation of the Administrative Agent, the Required
Lenders shall have the right to appoint a successor Administrative Agent, subject to the consent
(which shall not be unreasonably withheld or delayed) of the Borrowers if no Event of Default shall
have occurred and be continuing. If no successor Administrative Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent’s giving of notice of resignation then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which may be any
Lender hereunder or, with the consent (which shall not be unreasonably withheld or delayed) of the
Borrowers if no Event of Default shall have occurred and be



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continuing, any commercial bank, or an
Affiliate of a commercial bank, having an office in the United States of America and having a
combined capital and surplus of at least $200,000,000. Upon the acceptance of its appointment as
the Administrative Agent hereunder, such successor Administrative Agent shall thereupon succeed to
and become vested with all the rights and duties of the retiring Administrative Agent under the
Loan Documents, and the retiring Administrative Agent shall be discharged from its duties and
obligations thereunder. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Section 11 and all protective provisions of the other
Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent, but no successor Administrative Agent shall in any event be
liable or responsible for any actions of its predecessor. If the Administrative Agent resigns and
no successor is appointed, the rights and obligations of such Administrative Agent shall be
automatically assumed by the Required Lenders and the Borrowers shall be directed to make all
payments due each Lender and L/C Issuer hereunder directly to such Lender or L/C Issuer.



     Section 11.8. L/C Issuer and Swing Line Lender. The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and the Swing Line Lender shall act on behalf of the Lenders with respect to the Swing Loans made
hereunder. The L/C Issuer and the Swing Line Lender shall each have all of the benefits and
immunities (a) provided to the Administrative Agent in this Section 11 with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the Applications pertaining to such Letters of Credit or by the
Swing Line Lender in connection with Swing Loans made or to be made hereunder as fully as if the
term “Administrative Agent”, as used in this Section 11, included the L/C Issuer and the Swing Line
Lender with respect to such acts or omissions and (b) as additionally provided in this Agreement
with respect to such L/C Issuer or Swing Line Lender, as applicable.



     Section 11.9. Designation of Additional Agents. The Administrative Agent shall have the
continuing right, for purposes hereof, at any time and from time to time to designate one or more
of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,”
“book runners,” “lead arrangers,” “arrangers,” or other designations for purposes hereto, but such
designation shall have no substantive effect, and neither the Lead Arrangers and syndication agent
named herein nor any such Lenders and their Affiliates shall have any additional powers, duties or
responsibilities as a result of being named herein or of being so designated by the Administrative
Agent.



Section 12. The Guarantees.




     Section 12.1. The Guarantees. To induce the Lenders and L/C Issuer to provide the credits
described herein and in consideration of benefits expected to accrue to the Borrowers by reason of
the Revolving Credit Commitments and for other good and valuable consideration, receipt of which is
hereby acknowledged, (a) each Guarantor which is a Domestic Subsidiary (including any such
Subsidiary executing an Additional Guarantor Supplement in the form attached hereto as Exhibit G or
such other form acceptable to the Administrative Agent) hereby unconditionally and irrevocably
guarantees jointly and severally to the Administrative Agent, the



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Lenders, and the L/C Issuer and
their Affiliates, the due and punctual payment of all present and future Obligations of the U.S.
Borrower, including, but not limited to, the due and punctual payment by the U.S. Borrower of
principal of and interest on the Loans, the Reimbursement Obligations, and the due and punctual
payment of all other Obligations now or hereafter owed by the U.S. Borrower under the Loan
Documents, in each case as and when the same shall become due and payable, whether at stated
maturity, by acceleration, or otherwise, according to the terms hereof and thereof (including all
interest, costs, fees, and charges after the entry of an order for relief against any Borrower or
such other obligor in a case under the United States Bankruptcy Code or any similar proceeding,
whether or not such interest, costs, fees and charges would be an allowed claim against the U.S.
Borrower or any such obligor in any such proceeding), and (b) the U.S. Borrower and each Guarantor
which is a Subsidiary of the Canadian Borrower (including any such Subsidiary executing an
Additional Guarantor Supplement in the form attached hereto as Exhibit G or such other form
acceptable to the Administrative Agent) hereby unconditionally and irrevocably guarantees jointly
and severally to the Administrative Agent, the Lenders, and the L/C Issuer and their Affiliates,
the due and punctual payment of all present and future Obligations of the Canadian Borrower,
including, but not limited to, the due and punctual payment by the Canadian Borrower of principal
of and interest on the Loans, the Reimbursement Obligations, and the due and punctual payment of
all other Obligations now or hereafter owed by the Canadian Borrower under the Loan Documents, in
each case as and when the same shall become due and payable, whether at stated maturity, by
acceleration, or otherwise, according to the terms hereof and thereof (including all interest,
costs, fees, and charges after the entry of an order for relief against any Borrower or such other
obligor in a case under the Bankruptcy and Insolvency Act (Canada), as amended, or the Companies
Creditors Arrangement Act (Canada), as amended, or the Winding-Up and Restructuring Act (Canada),
as amended, or any similar proceeding, whether or not such interest, costs, fees and charges would
be an allowed claim against the Canadian Borrower or any such obligor in any such proceeding). In
case of failure by any Borrower or other obligor punctually to pay any Obligations guaranteed
hereby, each Guarantor of such Borrower’s Obligations under this Section 12.1 hereby
unconditionally agrees to make such payment or to cause such payment to be made punctually as and
when the same shall become due and payable, whether at stated maturity, by acceleration, or
otherwise, and as if such payment were made by the relevant Borrower or such obligor.



     Section 12.2. Guarantee Unconditional. The obligations of each Guarantor under this Section
12 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall
not be released, discharged, or otherwise affected by:




     (a) any extension, renewal, settlement, compromise, waiver, or release in respect of
any obligation of any Borrower or other obligor or of any other guarantor under this
Agreement or any other Loan Document or by operation of law or otherwise;




     (b) any modification or amendment of or supplement to this Agreement or any other Loan
Document;




     (c) any change in the corporate existence, structure, or ownership of, or any
insolvency, bankruptcy, reorganization, or other similar proceeding affecting, the Borrower
or other obligor, any other guarantor, or any of their respective assets, or any



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resulting
release or discharge of any obligation of any Borrower or other obligor or of any other
guarantor contained in any Loan Document;




     (d) the existence of any claim, set-off, or other rights which any Borrower or other
obligor or any other guarantor may have at any time against the Administrative Agent, any
Lender, the L/C Issuer or any other Person, whether or not arising in connection herewith;




     (e) any failure to assert, or any assertion of, any claim or demand or any exercise of,
or failure to exercise, any rights or remedies against any Borrower or other obligor, any
other guarantor, or any other Person or Property;




     (f) any application of any sums by whomsoever paid or howsoever realized to any
obligation of any Borrower or other obligor, regardless of what obligations of the Borrower
or other obligor remain unpaid;




     (g) any invalidity or unenforceability relating to or against any Borrower or other
obligor or any other guarantor for any reason of this Agreement or of any other Loan
Document or any provision of applicable law or regulation purporting to prohibit the payment
by any Borrower or other obligor or any other guarantor of the principal of or interest on
any Loan or any Reimbursement Obligation or any other amount payable under the Loan
Documents; or




     (h) any other act or omission to act or delay of any kind by the Administrative Agent,
any Lender, the L/C Issuer, or any other Person or any other circumstance whatsoever that
might, but for the provisions of this paragraph, constitute a legal or equitable discharge
of the obligations of any Guarantor under this Section 12.



     Section 12.3. Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances.
Each Guarantor’s obligations under this Section 12 shall remain
in full force and effect until the Revolving Credit Commitments are terminated, all Letters of
Credit have expired, and the principal of and interest on the Loans and all other amounts payable
by the Borrowers and the Guarantors under this Agreement and all other Loan Documents. If at any
time any payment of the principal of or interest on any Loan or any Reimbursement Obligation or any
other amount payable by any Borrower or other obligor or any Guarantor under the Loan Documents is
rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of any Borrower or other obligor or of any guarantor, or otherwise, each Guarantor’s
obligations under this Section 12 with respect to such payment shall be reinstated at such time as
though such payment had become due but had not been made at such time.



     Section 12.4. Subrogation. Each Guarantor agrees it will not exercise any rights which it may
acquire by way of subrogation by any payment made hereunder, or otherwise, until all the
Obligations shall have been paid in full subsequent to the termination of all the Revolving Credit
Commitments and expiration of all Letters of Credit. If any amount shall be paid to a Guarantor on
account of such subrogation rights at any time prior to the later of (x) the payment in full of



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the
Obligations and all other amounts payable by the Borrowers hereunder and the other Loan Documents
and (y) the termination of the Revolving Credit Commitments and expiration of all Letters of
Credit, such amount shall be held in trust for the benefit of the Administrative Agent, the
Lenders, and the L/C Issuer (and their Affiliates) and shall forthwith be paid to the
Administrative Agent for the benefit of the Lenders and L/C Issuer (and their Affiliates) or be
credited and applied upon the Obligations, whether matured or unmatured, in accordance with the
terms of this Agreement.



     Section 12.5. Waivers. Each Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest, and any notice not provided for herein, as well as any requirement that at any
time any action be taken by the Administrative Agent, any Lender, the L/C Issuer, or any other
Person against any Borrower or other obligor, another guarantor, or any other Person.



     Section 12.6. Limit on Recovery. Notwithstanding any other provision hereof, the right of
recovery against each Guarantor under this Section 12 shall not exceed $1.00 less than the lowest
amount which would render such Guarantor’s obligations under this Section 12 void or voidable under
applicable law, including, without limitation, fraudulent conveyance law.



     Section 12.7. Stay of Acceleration. If acceleration of the time for payment of any amount
payable by any Borrower or other obligor under this Agreement or any other Loan Document is stayed
upon the insolvency, bankruptcy or reorganization of any Borrower or such obligor, all such amounts
otherwise subject to acceleration under the terms of this Agreement or the other Loan Documents
shall nonetheless be payable by the Guarantors hereunder forthwith on demand by the Administrative
Agent made at the request of the Required Lenders.



     Section 12.8. Benefit to Guarantors. The Borrowers and the Guarantors are engaged in related
businesses and integrated to such an
extent that the financial strength and flexibility of the Borrower has a direct impact on the
success of each Guarantor. Each Guarantor will derive substantial direct and indirect benefit from
the extensions of credit hereunder.



     Section 12.9. Guarantor Covenants. Each Guarantor shall take such action as each Borrower is
required by this Agreement to cause such Guarantor to take, and shall refrain from taking such
action as each Borrower is required by this Agreement to prohibit such Guarantor from taking.



Section 13. Miscellaneous.




     Section 13.1. Withholding Taxes. (a) Payments Free of Withholding. Except as otherwise
required by law and subject to Section 13.1(b) hereof, each payment by each Borrower and the
Guarantors under this Agreement or the other Loan Documents shall be made without withholding for
or on account of any present or future taxes (other than overall net income taxes on the recipient)
imposed by or within the jurisdiction in which such Borrower or such Guarantor is domiciled, any
jurisdiction from which such Borrower or such Guarantor makes any payment, or (in each case) any
political subdivision or taxing authority thereof or therein. If any such withholding is so
required, such Borrower or such Guarantor shall make the withholding, pay the amount withheld to
the appropriate governmental authority before penalties attach thereto or



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interest accrues thereon,
and forthwith pay such additional amount as may be necessary to ensure that the net amount actually
received by each Lender, the L/C Issuer, and the Administrative Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount which that Lender, L/C
Issuer, or the Administrative Agent (as the case may be) would have received had such withholding
not been made. If the Administrative Agent, the L/C Issuer, or any Lender pays any amount in
respect of any such taxes, penalties or interest, such Borrower or such Guarantor shall reimburse
the Administrative Agent, the L/C Issuer or such Lender for that payment on demand in the currency
in which such payment was made. If such Borrower or such Guarantor pays any such taxes, penalties
or interest, it shall deliver official tax receipts evidencing that payment or certified copies
thereof to the Lender, the L/C Issuer or Administrative Agent on whose account such withholding was
made (with a copy to the Administrative Agent if not the recipient of the original) on or before
the thirtieth day after payment.



     (b) U.S. Withholding Tax Exemptions. Each Lender or L/C Issuer that is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the U.S.
Borrower and the Administrative Agent on or before the date the initial Credit Event is made
hereunder or, if later, the date such financial institution becomes a Lender or L/C Issuer
hereunder, two duly completed and signed copies of (i) either Form W-8 BEN (relating to such Lender
or L/C Issuer and entitling it to a complete exemption from withholding under the Code on all
amounts to be received by such Lender or L/C Issuer, including fees, pursuant to the Loan Documents
and the Obligations) or Form W-8 ECI (relating to all amounts to be received by such Lender or L/C
Issuer, including fees, pursuant to the Loan Documents and the Obligations) of the United States
Internal Revenue Service or (ii) solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, and a certificate representing that such Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the U.S. Borrower and is not a controlled foreign corporation
related to the U.S. Borrower (within the meaning of Section 864(d)(4) of the Code). Thereafter and
from time to time, each Lender and L/C Issuer shall submit to the U.S. Borrower and the
Administrative Agent such additional duly completed and signed copies of one or the other of such
Forms (or such successor forms as shall be adopted from time to time by the relevant United States
taxing authorities) and such other certificates as may be (i) requested by the U.S. Borrower in a
written notice, directly or through the Administrative Agent, to such Lender or L/C Issuer and (ii)
required under then-current United States law or regulations to avoid or reduce United States
withholding taxes on payments in respect of all amounts to be received by such Lender or L/C
Issuer, including fees, pursuant to the Loan Documents or the Obligations. Upon the request of the
U.S. Borrower or the Administrative Agent, each Lender and L/C Issuer that is a United States
person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the U.S.
Borrower and the Administrative Agent a certificate to the effect that it is such a United States
person.



     (c) Inability of Lender to Submit Forms. If any Lender or L/C Issuer determines, as a result
of any change in applicable law, regulation or treaty, or in any official application or
interpretation thereof, that it is unable to submit to the U.S. Borrower or the Administrative



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Agent any form or certificate that such Lender or L/C Issuer is obligated to submit pursuant to
subsection (b) of this Section 13.1 or that such Lender or L/C Issuer is required to withdraw or
cancel any such form or certificate previously submitted or any such form or certificate otherwise
becomes ineffective or inaccurate, such Lender or L/C Issuer shall promptly notify the U.S.
Borrower and Administrative Agent of such fact and the Lender or L/C Issuer shall to that extent
not be obligated to provide any such form or certificate and will be entitled to withdraw or cancel
any affected form or certificate, as applicable.



     Section 13.2. No Waiver, Cumulative Remedies. No delay or failure on the part of the
Administrative Agent, the L/C Issuer, or any Lender, or on the part of the holder or holders of any
of the Obligations, in the exercise of any power or right under any Loan Document shall operate as
a waiver thereof or as an acquiescence in any default, nor shall any single or partial exercise of
any power or right preclude any other or further exercise thereof or the exercise of any other
power or right. The rights and remedies hereunder of the Administrative Agent, the L/C Issuer, the
Lenders, and of the holder or holders of any of the Obligations are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.



     Section 13.3. Non-Business Days. If any payment hereunder becomes due and payable on a day
which is not a Business Day, the due date of such payment shall be extended to the next succeeding
Business Day on which date such payment shall be due and payable. In the case of any payment of
principal falling due on a day which is not a Business Day, interest on such principal amount shall
continue to accrue during such extension at the rate per annum then in effect, which accrued amount
shall be due and payable on the next scheduled date for the payment of interest.



     Section 13.4. Documentary Taxes. Each Borrower agrees to pay on demand any documentary, stamp
or similar taxes payable in respect of this Agreement or any other Loan Document, including
interest and penalties, in the event any such taxes are assessed, irrespective of when such
assessment is made and whether or not any credit is then in use or available hereunder.



     Section 13.5. Survival of Representations. All representations and warranties made herein or
in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the other Loan Documents, and shall continue in full
force and effect with respect to the date as of which they were made as long as any credit is in
use or available hereunder.



     Section 13.6. Survival of Indemnities. All indemnities and other provisions relative to
reimbursement to the Lenders and L/C Issuer of amounts sufficient to protect the yield of the
Lenders and L/C Issuer with respect to the Loans and Letters of Credit, including, but not limited
to, Sections 1.12, 10.3, and 13.15 hereof, shall survive the termination of this Agreement and the
other Loan Documents and the payment of the Obligations.



     Section 13.7. Sharing of Set-Off. Each Lender agrees with each other Lender a party hereto
that if such Lender shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans or Reimbursement Obligations in excess of



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its
ratable share of payments on all such Obligations then outstanding to the Lenders, then such Lender
shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders
such amount of the Loans or Reimbursement Obligations, or participations therein, held by each such
other Lenders (or interest therein) as shall be necessary to cause such Lender to share such excess
payment ratably with all the other Lenders; provided, however, that if any such purchase is made by
any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing
Lender, the related purchases from the other Lenders shall be rescinded ratably and the purchase
price restored as to the portion of such excess payment so recovered, but without interest. For
purposes of this Section, amounts owed to or recovered by the L/C Issuer in connection with
Reimbursement Obligations in which Lenders have been required to fund their participation shall be
treated as amounts owed to or recovered by the L/C Issuer as a Lender hereunder.



     Section 13.8. Notices. Except as otherwise specified herein, all notices hereunder and under
the other Loan Documents shall be in writing (including, without limitation, notice by telecopy)
and shall be given to the relevant party at its address or telecopier number set forth below, or
such other address or telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower given by courier, by United States certified or registered
mail, by telecopy or by other telecommunication device capable of creating a written record of such
notice and its receipt. Notices under the Loan Documents to any Lender shall be addressed to its
address or telecopier number set forth on its Administrative Questionnaire; and notices under the
Loans Documents to any Borrower, any
Guarantor, the Administrative Agent or L/C Issuer shall be addressed to its respective address or
telecopier number set forth below:



	 	 	 
	to the U.S. Borrower or any

	 	to the Administrative Agent and L/C Issuer :
	Guarantor: 
	 	 
	
One Strawberry Lane 

Orrville, Ohio 44667

	 	Bank of Montreal 
115 South LaSalle Street 

Chicago, Illinois 60603
	Attention: Treasurer

	 	Attention: Ms. Betsy Erdelyi
	Telephone: ________________________

	 	Telephone: (312) 461-4049
	Telecopy:   ________________________

	 	Telecopy:   (312) 765-1030
	 
	 	 
	to the Canadian Borrower:
	 	 
	 
	One Strawberry Lane
	 	 
	Orrville, Ohio 44667
	 	 
	Attention: Treasurer
	 	 
	Telephone: ________________________
	 	 
	Telecopy:   ________________________
	 	 





Each such notice, request or other communication shall be effective (i) if given by telecopier,
when such telecopy is transmitted to the telecopier number specified in this Section or in the
relevant Administrative Questionnaire and a confirmation of such telecopy has been received by the
sender, (ii) if given by mail, 5 days after such communication is deposited in the mail, certified
or registered with return receipt requested, addressed as aforesaid or (iii) if given by any other
means when delivered at the addresses specified in this Section or in the relevant Administrative
Questionnaire; provided that any notice given pursuant to Section 1 hereof shall be effective only
upon receipt.




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     Section 13.9. Counterparts. This Agreement may be executed in any number of counterparts, and
by the different parties hereto on separate counterpart signature pages, and all such counterparts
taken together shall be deemed to constitute one and the same instrument.



     Section 13.10. Successors and Assigns. This Agreement shall be binding upon the Borrowers and
the Guarantors and their successors and assigns, and shall inure to the benefit of the
Administrative Agent, the L/C Issuer, and each of the Lenders, and the benefit of their respective
successors and assigns, including any subsequent holder of any of the Obligations. The Borrowers
and the Guarantors may not assign any of their rights or obligations under any Loan Document
without the written consent of all of the Lenders and, with respect to any Letter of Credit or the
Application therefor, the L/C Issuer.



     Section 13.11. Participants. Each Lender shall have the right at its own cost to grant
participations (to be evidenced by one or more agreements or certificates of participation) in the
Loans made and Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at
any time and from time to time to one or more other Persons; provided that no such participation
shall relieve any Lender of any of
its obligations under this Agreement, and, provided, further that no such participant shall have
any rights under this Agreement except as provided in this Section, and the Administrative Agent
shall have no obligation or responsibility to such participant. Any agreement pursuant to which
such participation is granted shall provide that the granting Lender shall retain the sole right
and responsibility to enforce the obligations of each Borrower under this Agreement and the other
Loan Documents including, without limitation, the right to approve any amendment, modification or
waiver of any provision of the Loan Documents, except that such agreement may provide that such
Lender will not agree to any modification, amendment or waiver of the Loan Documents that would
reduce the amount of or postpone any fixed date for payment of any Obligation in which such
participant has an interest. Any party to which such a participation has been granted shall have
the benefits of Section 1.12 and Section 10.3 hereof.



     Section 13.12. Assignments. (a) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment and the Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:



     (i) Minimum Amounts. (A) In the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Credit Commitment and the Loans and participation interest in L/C
Obligations at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described
in subsection (a)(i)(A) of this Section, the aggregate amount of the Revolving Credit Commitment
(which for this purpose includes Loans and participation interest in L/C Obligations outstanding
thereunder) or, if the applicable Revolving Credit Commitment is not then in effect, the principal
outstanding balance of the Loans and participation interest in L/C Obligations of the assigning
Lender subject to each such assignment (determined as of the date



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the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent or, if “Effective Date” is
specified in the Assignment and Acceptance, as of the Effective Date) shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed);



     (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loan or the Revolving Credit Commitment assigned.



     (iii) Required Consents. No consent shall be required for any assignment except to the extent
required by Section 13.12(a)(i)(B) and, in addition:




     (a) the consent of the Borrowers (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has occurred and is continuing at
the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender
or an Approved Fund;




     (b) the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of the Revolving Credit if
such assignment is to a Person that is not a Lender with a Revolving Credit Commitment, an
Affiliate of such Lender or an Approved Fund with respect to such Lender; or




     (c) the consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of the assignee
to participate in exposure under one or more Letters of Credit (whether or not then
outstanding); and




     (d) the consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of the
assignee to participate in exposure under one or more Swing Loans (whether or not then
outstanding).



     (iv) Assignment and Acceptance. The parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and the assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.



     (v) No Assignment to Borrower or Parent. No such assignment shall be made to any Borrower or
any of their Affiliates or Subsidiaries.



     (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person.



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     (vii) No Prohibited Transaction. No such assignment shall be made if such assignment would
result in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section
13.12(b) hereof, from and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 13.6 and 13.15 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this Section shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 13.11 hereof.




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



     (c) Any Lender may at any time pledge or grant a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any such pledge or
grant to a Federal Reserve Bank, and this Section shall not apply to any such pledge or grant of a
security interest; provided that no such pledge or grant of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or secured party for
such Lender as a party hereto; provided further, however, the right of any such pledgee or grantee
(other than any Federal Reserve Bank) to further transfer all or any portion of the rights pledged
or granted to it, whether by means of foreclosure or otherwise, shall be at all times subject to
the terms of this Agreement.



     (d) Notwithstanding anything to the contrary herein, if at any time the Swing Line Lender
assigns all of its Revolving Credit Commitments and Revolving Loans pursuant to subsection (a)
above, the Swing Line Lender may terminate the Swing Line. In the event of such termination of the
Swing Line, the Borrowers shall be entitled to appoint another Lender to act as the successor Swing
Line Lender hereunder (with such Lender’s consent); provided, however, that the failure of the
Borrowers to appoint a successor shall not affect the resignation of the



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Swing Line Lender. If the
Swing Line Lender terminates the Swing Line, it shall retain all of the rights of the Swing Line
Lender provided hereunder with respect to Swing Loans made by it and outstanding as of the
effective date of such termination, including the right to require Lenders to make Revolving Loans
or fund participations in outstanding Swing Loans pursuant to Section 1.7 hereof.



     Section 13.13. Amendments. Any provision of this Agreement or the other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a) the
Borrowers, (b) the Required Lenders, and (c) if the rights or duties of the Administrative Agent,
the L/C Issuer, or the Swing Line Lender are affected thereby, the Administrative Agent, the L/C
Issuer, or the Swing Line Lender, as applicable; provided that:




     (i) no amendment or waiver pursuant to this Section 13.13 shall (A) increase any
Revolving Credit Commitment, or extend the Revolving Credit Termination Date, of any Lender
without the consent of such Lender or (B) reduce the amount of or postpone the date for any
scheduled payment of any principal of or interest on any Loan or of any Reimbursement
Obligation or of any fee payable hereunder without the consent of the
Lender to which such payment is owing or which has committed to make such Loan or Letter of
Credit (or participate therein) hereunder;




     (ii) no amendment or waiver pursuant to this Section 13.13 shall, unless signed by each
Lender, change the definition of Required Lenders, change the provisions of this Section
13.13, release any material guarantor (except as otherwise provided for in the Loan
Documents), release the U.S. Borrower as a Guarantor of the Canadian Borrower’s Obligations,
or affect the number of Lenders required to take any action hereunder or under any other
Loan Document; and




     (iii) no amendment to Section 12 hereof shall be made without the consent of the
Guarantor(s) affected thereby.



     Section 13.14. Headings. Section headings used in this Agreement are for reference only and
shall not affect the construction of this Agreement.



     Section 13.15. Costs and Expenses; Indemnification. Each Borrower agrees to pay all costs and
expenses of the Administrative Agent in connection with the preparation, negotiation, syndication,
and administration of the Loan Documents, including, without limitation, the reasonable fees and
disbursements of United States and Canadian counsel to the Administrative Agent, in connection with
the preparation and execution of the Loan Documents, and any amendment, waiver or consent related
thereto, whether or not the transactions contemplated herein are consummated. Each Borrower agrees
to pay to the Administrative Agent, the L/C Issuer and each Lender, all costs and expenses
reasonably incurred or paid by the Administrative Agent, the L/C Issuer, such Lender, or any such
holder, including reasonable attorneys’ fees and disbursements and court costs, in connection with
the enforcement of any of the Loan Documents (including all such costs and expenses incurred in
connection with any proceeding under the United States Bankruptcy Code involving any Borrower or
any Guarantor as a debtor thereunder) or in connection with any work-out or restructuring in
respect of the



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Obligations hereunder. Each Borrower further agrees to indemnify the Administrative
Agent, the L/C Issuer, each Lender, and any security trustee therefor, and their respective
directors, officers, employees, agents, financial advisors, and consultants (each such Person being
called an “Indemnitee”) against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all reasonable fees and disbursements of counsel for any
such Indemnitee and all reasonable expenses of litigation or preparation therefor, whether or not
the Indemnitee is a party thereto, or any settlement arrangement arising from or relating to any
such litigation) which any of them may pay or incur arising out of or relating to any Loan Document
or any of the transactions contemplated thereby or the direct or indirect application or proposed
application of the proceeds of any Loan or Letter of Credit or any actual or alleged presence or
release of Hazardous Materials on or from any Property owned or operated by any Borrower or any
Subsidiary or any liability under any Environmental Law, other than those which are determined by a
court of competent jurisdiction in a final non-appealable judgment to have arisen from the gross
negligence or willful misconduct of the party claiming indemnification. Each Borrower, upon demand
by the Administrative Agent, the L/C Issuer or a Lender at any time, shall reimburse the
Administrative Agent, the L/C Issuer or such Lender for any legal or other expenses (including,
without limitation, all reasonable fees and disbursements of counsel for any such Indemnitee)
incurred in connection with investigating or defending against any of the foregoing (including any
settlement costs relating to the foregoing) except if the same is determined by a court of
competent jurisdiction in a final non-appealable judgment to be directly due to the gross
negligence or willful misconduct of the party to be indemnified. To the extent permitted by
applicable law, neither any Borrower nor any Guarantor shall assert, and each such Person hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or the other Loan Documents or any agreement or
instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. The obligations of each Borrower
under this Section shall survive the termination of this Agreement.



     Section 13.16. Set-off. In addition to any rights now or hereafter granted under the Loan
Documents or applicable law and not by way of limitation of any such rights, upon the occurrence of
any Event of Default, each Lender, the L/C Issuer, each subsequent holder of any Obligation, and
each of their respective affiliates, is hereby authorized by each Borrower and each Guarantor at
any time or from time to time, without notice to any Borrower, any Guarantor or to any other
Person, any such notice being hereby expressly waived, to set-off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured, and in whatever currency denominated, but
not including trust accounts) and any other indebtedness at any time held or owing by that Lender,
L/C Issuer, subsequent holder, or affiliate, to or for the credit or the account of such Borrower
or such Guarantor, whether or not matured, against and on account of the Obligations of such
Borrower or such Guarantor to that Lender, L/C Issuer, or subsequent holder under the Loan
Documents, including, but not limited to, all claims of any nature or description arising out of or
connected with the Loan Documents, irrespective of whether or not (a) that Lender, L/C Issuer, or
subsequent holder shall have made any demand hereunder or (b) the principal of or the interest on
the Loans and other amounts due hereunder



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shall have become due and payable pursuant to Section 9
and although said obligations and liabilities, or any of them, may be contingent or unmatured.



     Section 13.17. Entire Agreement. The Loan Documents constitute the entire understanding of
the parties thereto with respect to the subject matter thereof and any prior agreements, whether
written or oral, with respect thereto are superseded hereby.



     Section 13.18. Governing Law. This Agreement and the other Loan Documents (except as
otherwise specified therein), and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of New York.



     Section 13.19. Severability of Provisions. Any provision of any Loan Document which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability
without invalidating the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction. All rights, remedies and powers provided in this
Agreement and the other Loan Documents may be exercised only to the extent that the exercise
thereof does not violate any applicable mandatory provisions of law, and all the provisions of this
Agreement and other Loan Documents are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent necessary so that they
will not render this Agreement or the other Loan Documents invalid or unenforceable.



     Section 13.20. Excess Interest. (a) Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance in the collection, of all
or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan
Document (“Excess Interest”). If any Excess Interest is provided for, or is adjudicated to be
provided for, herein or in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither any Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied
as a credit against the then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by applicable law), (ii)
refunded to the relevant Borrower, or (iii) any combination of the foregoing, (d) the interest rate
payable hereunder or under any other Loan Document shall be automatically subject to reduction to
the maximum lawful contract rate allowed under applicable usury laws (the “Maximum Rate”), and this
Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and
modified to reflect such reduction in the relevant interest rate, and (e) neither any Borrower nor
any guarantor or endorser shall have any action against the Administrative Agent or any Lender for
any damages whatsoever arising out of the payment or collection of any Excess Interest.
Notwithstanding the foregoing, if for any period of time interest on any of any Borrower’s
Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement,
and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest
payable on such Borrower’s Obligations shall remain at the Maximum Rate until the Lenders have
received the



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amount of interest which such Lenders would have received during such period on such
Borrower’s Obligations had the rate of interest not been limited to the Maximum Rate during such
period.



     (b) Canadian Interest. If any provision of this Agreement or any other Loan Document would
obligate Canadian Borrower to make any payment of interest or other amount payable to (including
for the account of) any Lender in an amount, or calculated at a rate, that would be prohibited by
law or would result in a receipt by such Lender of interest at a criminal rate (as such terms are
construed under the Criminal Code (Canada)) then, notwithstanding such provision, such amount or
rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law or so result in a receipt by
such Lender of interest at a criminal rate, such adjustment to be effected, to the extent
necessary, as follows: (i) first, by reducing the amount or rate of interest required to be paid to
such Lender under Section 1.4; and (ii) thereafter, by reducing any fees,
commissions, premiums and other amounts required to be paid to such Lender that would constitute
interest for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing,
and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an
amount in excess of the maximum amount permitted by that section of the Criminal Code (Canada),
then Canadian Borrower shall be entitled, by notice in writing to such Canadian Lender, to obtain
reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount payable by such Lender to Canadian Borrower. Any
amount or rate of interest referred to in this Agreement with respect to the Revolving Credit
Commitments to make Loans to and issue Letters of Credit for the account of the Canadian Borrower
shall be determined in accordance with generally accepted actuarial practices and principles as an
effective annual rate of interest over the term that the Revolving Credit Commitments to make Loans
to and issue Letters of Credit for the account of the Canadian Borrower remains outstanding on the
assumption that any charges, fees or expenses that fall within the meaning of “interest” (as
defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be
pro-rated over that period of time and otherwise be pro-rated over the period during which such
Revolving Credit Commitments are available and, in the event of a dispute, a certificate of a
Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be
conclusive for the purposes of such determination.



     Section 13.21. Construction. The parties acknowledge and agree that the Loan Documents shall
not be construed more favorably in favor of any party hereto based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to the negotiation of
the Loan Documents. The provisions of this Agreement relating to Subsidiaries shall only apply
during such times as any Borrower has one or more Subsidiaries.



     Section 13.22. Lender’s and L/C Issuer ‘s Obligations Several. The obligations of the Lenders
and L/C Issuer hereunder are several and not joint. Nothing contained in this Agreement and no
action taken by the Lenders or L/C Issuer pursuant hereto shall be deemed to constitute the Lenders
and L/C Issuer a partnership, association, joint venture or other entity.



     Section 13.23. Currency. Each reference in this Agreement to U.S. Dollars or to Canadian
Dollars (the “relevant currency”) is of the essence. To the fullest extent permitted by



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law, the
obligation of each Borrower and each Guarantor in respect of any amount due in the relevant
currency under this Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the
relevant currency that the Person entitled to receive such payment may, in accordance with normal
banking procedures, purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which such Person receives such
payment. If the amount of the relevant currency so purchased is less than the sum originally due
to such Person in the relevant currency, the relevant Borrower or relevant Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such Person against such
loss, and if the amount of the specified currency so purchased exceeds the sum of (a) the amount
originally due to the relevant Person in the specified currency plus (b) any amounts shared with
other Lenders as a result of
allocations of such excess as a disproportionate payment to such Person under Section 13.7 hereof,
such Person agrees to remit such excess to the relevant Borrower. Unless otherwise specified
herein, all references to a currency shall be deemed to refer to U.S. Dollars.



     Section 13.24. Submission to Jurisdiction; Waiver of Jury Trial. The Borrowers and the
Guarantors hereby submit to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in the Borough of
Manhattan for purposes of all legal proceedings arising out of or relating to this Agreement, the
other Loan Documents or the transactions contemplated hereby or thereby. The Borrowers and the
Guarantors irrevocably waive, to the fullest extent permitted by law, any objection which they may
now or hereafter have to the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought in an inconvenient
forum. The Borrowers, the Guarantors, the Administrative Agent, the L/C Issuer and the Lenders
hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of
or relating to any Loan Document or the transactions contemplated thereby.



     Section 13.25. USA Patriot Act. Each Lender and L/C Issuer that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies each Borrower that pursuant to the requirements of the Act, it
is required to obtain, verify, and record information that identifies such Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender or L/C Issuer to identify each Borrower in accordance with the Act.



     Section 13.26. Confidentiality. Each of the Administrative Agent, the Lenders, and the L/C
Issuer severally agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors to the extent any
such Person has a need to know such Information (it being understood that the Persons to whom such
disclosure is made will first be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any



-82-









 







remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(A) any assignee of or participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower or any Subsidiary and its
obligations, (g) with the prior written consent of the Borrowers, (h) to the extent such
Information (A) becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent, any Lender or the L/C Issuer on a
non-confidential basis from a source other than any Borrower or
any Subsidiary or any of their directors, officers, employees or agents, including accountants,
legal counsel and other advisors, (i) to rating agencies if requested or required by such agencies
in connection with a rating relating to the Loans or Revolving Credit Commitments hereunder, or (j)
to entities which compile and publish information about the syndicated loan market, provided that
only basic information about the pricing and structure of the transaction evidenced hereby may be
disclosed pursuant to this subsection (j). For purposes of this Section, “Information”
means all information received from any Borrower or any of the Subsidiaries or from any other
Person on behalf of any Borrower or any Subsidiary relating to any Borrower or any Subsidiary or
any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a non-confidential basis prior to disclosure
by any Borrower or any of its Subsidiaries or from any other Person on behalf of any Borrower or
any of the Subsidiaries.



[Signature Pages to Follow]





-83-











 





     This Credit Agreement is entered into between us for the uses and purposes hereinabove set
forth as of the date first above written.



	 	 	 	 	 
	 	“Borrowers”



The J.M. Smucker Company

 	 
	 	By  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President and Chief Financial
Officer 	 
	 
	 	Smucker Foods of Canada Co.

 	 
	 	By  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President 	 
	 
	 	“Guarantors”



The J.M. Smucker Company

 	 
	 	By  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President and Chief Financial
Officer 	 
	 
	 	J.M. Smucker LLC

 	 
	 	By  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President and Chief Financial
Officer 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	The Folgers Coffee Company

 	 
	 	By  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President and Chief Financial
Officer 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement





 









 








	 	 	 	 	 
	 	“Administrative Agent and L/C Issuer ”



Bank of Montreal, as L/C Issuer and as

Administrative Agent

 	 
	 	By  	/s/ Betzaida Erdelyi
 	 
	 	 	Name:  	Betzaida Erdelyi 	 
	 	 	Title:  	Director 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement






 









 








	 	 	 	 	 
	 	“Lenders”



Bank of Montreal

 	 
	 	By  	/s/ Betzaida Erdelyi
 	 
	 	 	Name:  	Betzaida Erdelyi 	 
	 	 	Title:  	Director 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement





 









 








	 	 	 	 	 
	 	Bank of America N.A.

 	 
	 	By  	/s/ J. Casey Cosgrove
 	 
	 	 	Name:  	J. Casey Cosgrove 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Bank of America, N.A.,  Canada Branch

 	 
	 	By  	/s/ Medina Sales De Andrade
 	 
	 	 	Name:  	Medina Sales De Andrade 	 
	 	 	Title:  	Vice President 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement








 









 








	 	 	 	 	 
	 	National City Bank

 	 
	 	By  	/s/ Lisa Lisi
 	 
	 	 	Name:  	Lisa Lisi 	 
	 	 	Title:  	Vice President 	 
	 
	 	National City Bank, Canada Branch

 	 
	 	By  	/s/ Caroline Stade
 	 
	 	 	Name:  	Caroline Stade 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By  	                                                  /s/ G. W. Hines
 	 
	 	 	Name:  	G.W. Hines 	 
	 	 	Title:  	Senior Vice President 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement




 









 








	 	 	 	 	 
	 	JPMorgan Chase Bank, N.A.

 	 
	 	By  	/s/ Gregory T. Martin
 	 
	 	 	Name:  	Gregory T. Martin 	 
	 	 	Title:  	Vice President 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	Fifth Third Bank

 	 
	 	By  	/s/ Martin H. McGinty
 	 
	 	 	Name:  	Martin H. McGinty 	 
	 	 	Title:  	Vice President 	 
	 
	 	Fifth Third Bank, an Authorized Foreign Bank

 	 
	 	By  	/s/ Jeremiah A. Hynes
 	 
	 	 	Name:  	Jeremiah A. Hynes 	 
	 	 	Title:  	Vice President/Principal Officer 	 
	 



The J.M. Smucker Company

Smucker Foods of Canada Co.

Signature Page to Credit Agreement





 











 





Exhibit A




Notice of Payment Request




[Date]




[Name of Lender]

[Address]




Attention:



     Reference is made to the Credit Agreement, dated as of October 29, 2009, among The J.M.
Smucker Company and Smucker Foods of Canada Co., as Borrowers, the Lenders party thereto, and Bank
of Montreal, as Administrative Agent (as extended, renewed, amended or restated from time to time,
the “Credit Agreement”). Capitalized terms used herein and not defined herein have the meanings
assigned to them in the Credit Agreement. [The Borrower has failed to pay its Reimbursement
Obligation in the amount of $                    . Your Revolver Percentage of the unpaid Reimbursement
Obligation is $                    ] or [                                         has been required to return a payment
by the Borrower of a Reimbursement Obligation in the amount of $                    . Your Revolver
Percentage of the returned Reimbursement Obligation is $                    .]



	 	 	 	 	 
	 	Very truly yours,

 	 
	 	
 	, 
	 	as L/C Issuer 	 
	 	 	 
	 
	 	 	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 














 








Exhibit B




Notice of Borrowing




Date:                     ,      





			
	To:	 	Bank of Montreal, as Administrative Agent for the Lenders parties to the Credit Agreement dated as of October 29, 2009 (as
extended, renewed, amended or restated from time to time, the “Credit Agreement”), among The J.M. Smucker Company and
Smucker Foods of Canada Co.,, as Borrowers, certain Lenders which are signatories thereto, and Bank of Montreal, as
Administrative Agent





Ladies and Gentlemen:





     The undersigned,                                          (the “Borrower”), refers to the Credit Agreement, the
terms defined therein being used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 1.6 of the Credit Agreement, of the Borrowing specified below:




     1. The Business Day of the proposed Borrowing is                     ,      .




     2. The aggregate amount of the proposed Borrowing is $                    .




     3. The Borrowing is being advanced under the Revolving Credit.




     4. The Borrowing is to be comprised of $                     of [U.S. Base Rate] [Eurodollar]
[CAD Base Rate] [CAD CDOR]Loans.




     [5. The duration of the Interest Period for the [Eurodollar] [CAD CDOR] Loans included
in the Borrowing shall be                      months.]



     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, before and after giving effect thereto and
to the application of the proceeds therefrom:




     (a) the representations and warranties of the Borrower contained in Section 6 of the
Credit Agreement are true and correct in all material respects as though made on and as of
such date (except to the extent such representations and warranties relate to an earlier
date, in which case they are true and correct as of such date); and




     (b) no Default or Event of Default has occurred and is continuing or would result from
such proposed Borrowing.



	 	 	 	 	 
	 	
 	 
	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 














 








Exhibit C




Notice of Continuation/Conversion




Date:                     ,      





			
	To:	 	Bank of Montreal, as Administrative Agent for the Lenders parties to the Credit Agreement
dated as of October 29, 2009 (as extended, renewed, amended or restated from time to time, the
“Credit Agreement”) among The J.M. Smucker Company and Smucker Foods of Canada Co., as
Borrowers, certain Lenders which are signatories thereto, and Bank of Montreal, as
Administrative Agent





Ladies and Gentlemen:





     The undersigned,                                          (the “Borrower”), refers to the Credit Agreement, the
terms defined therein being used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 1.6 of the Credit Agreement, of the [conversion] [continuation] of
the Loans specified herein, that:




     1. The conversion/continuation Date is                     ,      .




     2. The aggregate amount of the Revolving Loans to be [converted] [continued] is
$                    .




     3. The Loans are to be [converted into] [continued as] [Eurodollar] [U.S. Base Rate]
[CAD Base Rate] [CAD CDOR] Loans.




     4. [If applicable:] The duration of the Interest Period for the Revolving Loans
included in the [conversion] [continuation] shall be                      months.



     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the proposed conversion/continuation date, before and after giving effect
thereto and to the application of the proceeds therefrom:




     (a) the representations and warranties of the Borrower contained in Section 6 of the
Credit Agreement are true and correct in all material respects as though made on and as of
such date (except to the extent such representations and warranties relate to an earlier
date, in which case they are true and correct as of such date); provided, however, that this
condition shall not apply to the conversion of an outstanding Eurodollar Loan to a U.S. Base
Rate Loan; and




     (b) no Default or Event of Default has occurred and is continuing, or would result from
such proposed [conversion] [continuation].




	 	 	 	 	 
	 	
 	 
	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 















 








Exhibit D-1




Revolving Note




                         ,      



     For Value Received, the undersigned,
                                        , a                      corporation/limited liability company/partnership
(the “Maker”), hereby promises to pay to                                          (the “Lender”) or its registered
assigns on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, at
the principal office of the Administrative Agent in Chicago Illinois (or such other location as the
Administrative Agent may designate to the Borrower), in immediately available funds in the currency
in which each Revolving Loan is advanced, the aggregate unpaid principal amount of all Revolving
Loans made by the Lender to the Maker pursuant to the Credit Agreement, together with interest on
the principal amount of each Revolving Loan from time to time outstanding hereunder at the rates,
and payable in the manner and on the dates, specified in the Credit Agreement.



     This Note is one of the Revolving Notes referred to in the Credit Agreement dated as of
October 29, 2009, among The J.M. Smucker Company and Smucker Foods of Canada Co., as Borrowers, the
Guarantors party thereto, the Lenders and L/C Issuer parties thereto, and Bank of Montreal, as
Administrative Agent (as extended, renewed, amended or restated from time to time, the “Credit
Agreement”), and this Note and the holder hereof are entitled to all the benefits provided for
thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement
thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have
the same meaning as in the Credit Agreement. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York.



     Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon,
and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the
terms and in the manner as provided for in the Credit Agreement.



     The Maker hereby waives demand, presentment, protest or notice of any kind hereunder.



	 	 	 	 	 
	 	
 	 
	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 
















 








Exhibit D-2




Swing Note




                         ,      



     For Value Received, the undersigned, The J.M. Smucker Company, an
Ohio corporation (the “Maker”), hereby promises to pay to                      (the “Lender”) or its
registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit
Agreement, at the principal office of the Administrative Agent in Chicago, Illinois (or such other
location as the Administrative Agent may designate to the Borrower), in immediately available funds
in the currency in which each Swing Loan is advanced, the aggregate unpaid principal amount of all
Swing Loans made by the Lender to the Maker pursuant to the Credit Agreement, together with
interest on the principal amount of each Swing Loan from time to time outstanding hereunder at the
rates, and payable in the manner and on the dates, specified in the Credit Agreement.



     This Note is the Swing Note referred to in the Credit Agreement dated as of October 29, 2009,
among The J.M. Smucker Company and Smucker Foods of Canada Co., as Borrowers, the Guarantors party
thereto, the Lenders and L/C Issuer parties thereto, and Bank of Montreal, as Administrative Agent
(as extended, renewed, amended or restated from time to time, the “Credit Agreement”), and this
Note and the holder hereof are entitled to all the benefits provided for thereby or referred to
therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined
terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in
the Credit Agreement. This Note shall be governed by and construed in accordance with the internal
laws of the State of New York.



     Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon,
and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the
terms and in the manner as provided for in the Credit Agreement.



     The Maker hereby waives demand, presentment, protest or notice of any kind hereunder.



The J.M. Smucker Company



	 	 	 	 	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 
















 








Exhibit E




The J.M. Smucker Company

 Smucker Foods of Canada Co.




Compliance Certificate





			
	To:	 	Bank of Montreal, as Administrative 
Agent
under, and the Lenders and 
L/C Issuer
parties to, the Credit 
Agreement described
below





     This Compliance Certificate is furnished to the Administrative Agent, the L/C Issuer, and the
Lenders pursuant to that certain Credit Agreement dated as of October 29, 2009, among The J.M.
Smucker Company and Smucker Foods of Canada Co., as Borrowers, and you (as extended, renewed,
amended or restated from time to time, the “Credit Agreement”). Unless otherwise defined herein,
the terms used in this Compliance Certificate have the meanings ascribed thereto in the Credit
Agreement.



     The Undersigned hereby certifies that:



     1. I am the duly elected                      of                                                             ;



     2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be
made under my supervision, a detailed review of the transactions and conditions of the Borrower and
its Subsidiaries during the accounting period covered by the attached financial statements;



     3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or the occurrence of any event which constitutes a Default or Event of
Default during or at the end of the accounting period covered by the attached financial statements
or as of the date of this Compliance Certificate, except as set forth below;



     4. The financial statements required by Section 8.5 of the Credit Agreement and being
furnished to you concurrently with this Compliance Certificate are true, correct and complete as of
the date and for the periods covered thereby; and



     5. The Schedule I hereto sets forth financial data and computations evidencing the Borrowers’
compliance with certain covenants of the Credit Agreement, all of which data and computations are,
to the best of my knowledge, true, complete and correct and have been made in accordance with the
relevant Sections of the Credit Agreement.













 





     Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:



 





 





 





 





     The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered this                      day of                      20     .



     [Insert Name of Borrower]



	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name  
	 
	 	 	Title  
	 
	 





-2-









 








Schedule I

to Compliance Certificate




The J.M. Smucker Company

Smucker Foods of Canada Co.




Compliance Calculations

for Credit Agreement dated as of October 29, 2009




Calculations as of                                         _,                     




	 	 	 	 	 	 	 	 	 
	A.	 	 	Total Leverage Ratio (Section 8.20(a))	 
	 	 	 	1.	 	 	Total Funded Debt

	 	$                    
	 	 	 	2.	 	 	Net Income for past 4 quarters

	 	                    
	 	 	 	3.	 	 	Interest Expense for past 4 quarters

	 	                    
	 	 	 	4.	 	 	Income taxes for past 4 quarters

	 	                    
	 	 	 	5.	 	 	Depreciation and Amortization Expense for past 4 quarters

	 	                    
	 	 	 	6.	 	 	Non-cash share based compensation expense for past 4 quarters

	 	                    
	 	 	 	7.	 	 	The Folgers Add-Back for past 4 quarters

	 	                    
	 	 	 	8.	 	 	Non-recurring charges and expenses relating to
Permitted Acquisition and extraordinary losses and charges
(up to $50,000,000 during the term of the Credit
Agreement) for past 4 quarters

	 	                    
	 	 	 	9.	 	 	EBITDA of Acquired Business for past 4 quarters

	 	                    
	 	 	 	10.	 	 	Non-cash gains for past 4 quarters

	 	                    
	 	 	 	11.	 	 	EBITDA of divested business for past 4 quarters

	 	                    
	 	 	 	12.	 	 	Sum of Lines A2, A3, A4, A5, A6, A7, A8 and A9 minus
Lines A10 and A11 (“EBITDA”)

	 	                    
	 	 	 	13.	 	 	Ratio of Line A1 to A12

	 	___:1.0
	 	 	 	14.	 	 	Line A13 ratio must not exceed

	 	3.5:1.0
	 	 	 	15.	 	 	The Borrowers are in compliance (circle yes or no)

	 	yes/no
















 






	 	 	 	 	 	 	 	 	 
	B.	 	Interest Coverage Ratio (Section 8.20(b))	 	 
	 	 	 	1.	 	 	EBITDA for past 4 quarters

	 	$                    
	 	 	 	2.	 	 	Interest Expense for past 4 quarters

	 	$                    
	 	 	 	3.	 	 	Ratio of Line B1 to Line B2

	 	______:1.0
	 	 	 	4.	 	 	Line B3 ratio must not be less than

	 	3.5:1.0
	 	 	 	5.	 	 	The Borrowers are in compliance (circle yes or no)

	 	yes/no







-2-











 





Exhibit F




Additional Guarantor Supplement




                    , ___



Bank of Montreal, as Administrative Agent for the
Lenders and L/C Issuer parties to the Credit Agreement
dated as of October 29, 2009, among The J.M. Smucker
Company and Smucker Foods of Canada Co., as Borrowers,
the Guarantors referred to therein, the Lenders and L/C
Issuer parties thereto from time to time, and the
Administrative Agent (as extended, renewed, amended or
restated from time to time, the “Credit Agreement")




Ladies and Gentlemen:




     Reference is made to the Credit Agreement described above. Terms not defined herein which are
defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.



     The undersigned, [name of Subsidiary Guarantor], a [jurisdiction of incorporation or
organization] hereby elects to be a “Guarantor” for all purposes of the Credit Agreement, effective
from the date hereof. The undersigned confirms that the representations and warranties set forth
in Section 6 of the Credit Agreement are true and correct as to the undersigned as of the date
hereof and the undersigned shall comply with each of the covenants set forth in Section 8 of the
Credit Agreement applicable to it.



     Without limiting the generality of the foregoing, the undersigned hereby agrees to perform all
the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation Section 12 thereof, to the same extent and with the same
force and effect as if the undersigned were a signatory party thereto.



     The undersigned acknowledges that this Agreement shall be effective upon its execution and
delivery by the undersigned to the Administrative Agent, and it shall not be necessary for the
Administrative Agent, the L/C Issuer, or any Lender, or any of their Affiliates entitled to the
benefits hereof, to execute this Agreement or any other acceptance hereof. This Agreement shall be
construed in accordance with and governed by the internal laws of the State of New York.



	 	 	 	 	 
	 	Very truly yours,



[Name of Subsidiary Guarantor]

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 
	 




 









 








Exhibit G




Assignment and Acceptance




Dated                     , ___





     Reference is made to the Credit Agreement dated as of October 29, 2009 (as extended, renewed,
amended or restated from time to time, the “Credit Agreement”) among The J.M. Smucker Company, an
Ohio corporation, and Smucker Foods of Canada Co., a Nova Scotia corporation, the Guarantors party
thereto, the Lenders and L/C Issuer parties thereto, and Bank of Montreal, as Administrative Agent
(the “Administrative Agent”). Terms defined in the Credit Agreement are used herein with the same
meaning.



                                                                  (the “Assignor”) and                                          (the “Assignee”) agree
as follows:




     1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, the amount and specified percentage interest shown
on Annex I hereto of the Assignor’s rights and obligations under the Credit Agreement as of
the Effective Date (as defined below), including, without limitation, the Assignor’s
Revolving Credit Commitments as in effect on the Effective Date and the Loans, if any, owing
to the Assignor on the Effective Date and the Assignor’s Revolver Percentage of any
outstanding L/C Obligations. Such sale and assignment is without recourse to the Assignor
and, except as expressly provided in this Assignment and Assumption, without representation
or warranty by the Assignor.




     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, lien, or encumbrance of any kind; (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 the Credit
Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or any Subsidiary or the performance or observance by any Borrower
or any Subsidiary of any of their respective obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto.




     3. The Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered to the Lenders
pursuant to Section 8.5(a) and (b) 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 Administrative Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time,



 









 







continue to make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (iv) agrees that it
will perform in accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (v) specifies as its
lending office (and address for notices) the offices set forth on its Administrative
Questionnaire.




     4. As consideration for the assignment and sale contemplated in Annex I hereof, the
Assignee shall pay to the Assignor on the Effective Date in Federal funds the amount agreed
upon between them. It is understood that commitment and/or letter of credit fees accrued to
the Effective Date with respect to the interest assigned hereby are for the account of the
Assignor and such fees accruing from and including the Effective Date are for the account of
the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any
amount under the Credit Agreement which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent of such other
party’s interest therein and shall promptly pay the same to such other party.




     5. The effective date for this Assignment and Acceptance shall be                     
(the “Effective Date”). Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the Administrative
Agent and, if required, the Borrower.




     6. Upon such acceptance and recording, 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.




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



-2-









 






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



	 	 	 	 	 
	 	[Assignor Lender]

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 
	 
	 	[Assignee Lender]

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 
	 


Accepted and consented this
___day of                     




	 	 	 	 	 
	[Insert Name of Borrower]

 	 	 
	By  	 	 	 
	 	Name  	 	 	 
	 	Title  	 	 	 
	 


Accepted and consented to by the Administrative
Agent and L/C Issuer this ___day of                     




	 	 	 	 	 
	Bank of Montreal, 

as Administrative Agent and L/C Issuer

 	 	 
	By  	 	 	 
	 	Name  	 	 	 
	 	Title  	 	 	 
	 




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Annex I

to Assignment and Acceptance





     The assignee hereby purchases and assumes from the assignor the following interest in and to
all of the Assignor’s rights and obligations under the Credit Agreement as of the effective date.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 
	 	 	Commitment/Loans	 	Amount of	 	Percentage
	 	 	For All	 	Commitment/Loans	 	Assigned of
	Facility Assigned	 	Lenders	 	Assigned	 	Commitment/Loans
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Revolving Credit
	 	$	                    	 	 	$	                    	 	 	 	                    	%







 









 








Exhibit H




Commitment Amount Increase Request




                    , ___





	To: 	 	Bank of Montreal, as Administrative Agent for the Lenders parties to the Credit Agreement
dated as of October 29, 2009 (as extended, renewed, amended or restated from time to time, the
“Credit Agreement”), among The J.M. Smucker Company, Smucker Foods of Canada Co., the
Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal,
as Administrative Agent





Ladies and Gentlemen:




     The undersigned, The J.M. Smucker Company and Smucker Foods of Canada Co. (the “Borrowers”)
hereby refers to the Credit Agreement and requests that the Administrative Agent consent to an
increase in the aggregate Revolving Credit Commitments (the “Commitment Amount Increase”), in
accordance with Section 1.2 of the Credit Agreement, to be effected by [an increase in the
Revolving Credit Commitment of [name of existing Lender] [the addition of [name of new Lender] (the
“New Lender”) as a Lender under the terms of the Credit Agreement]. Capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the Credit Agreement.



     After giving effect to such Commitment Amount Increase, the Revolving Credit Commitment of the
[Lender] [New Lender] shall be $                    .



[Include paragraphs 1-4 for a New Lender]




     1. The New Lender hereby confirms that it has received a copy of the Loan Documents and the
exhibits related thereto, together with copies of the documents which were required to be delivered
under the Credit Agreement as a condition to the making of the Loans and other extensions of credit
thereunder. The New Lender acknowledges and agrees that it has made and will continue to make,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, its own credit analysis and decisions
relating to the Credit Agreement. The New Lender further acknowledges and agrees that the
Administrative Agent has not made any representations or warranties about the credit worthiness of
any Borrower or any other party to the Credit Agreement or any other Loan Document or with respect
to the legality, validity, sufficiency or enforceability of the Credit Agreement or any other Loan
Document or the value of any security therefor.



     2. Except as otherwise provided in the Credit Agreement, effective as of the date of
acceptance hereof by the Administrative Agent, the New Lender (i) shall be deemed



 









 







automatically to have become a party to the Credit Agreement and have all the rights and
obligations of a “Lender” under the Credit Agreement as if it were an original signatory thereto
and (ii) agrees to be bound by the terms and conditions set forth in the Credit Agreement as if it
were an original signatory thereto.



     3. The New Lender shall deliver to the Administrative Agent an Administrative Questionnaire.



     [4. The New Lender has delivered, if appropriate, to the Borrowers and the Administrative
Agent (or is delivering to the Borrowers and the Administrative Agent concurrently herewith) the
tax forms referred to in Section 13.1 of the Credit Agreement.]*



     This Agreement shall be deemed to be a contractual obligation under, and shall be governed
by and construed in accordance with, the laws of the state of New York.



     The Commitment Amount Increase shall be effective when the executed consent of the
Administrative Agent is received or otherwise in accordance with Section 1.2 of the Credit
Agreement, but not in any case prior to                     , ___. It shall be a condition to the
effectiveness of the Commitment Amount Increase that all expenses referred to in Section 1.2 of the
Credit Agreement shall have been paid.



     Each Borrower hereby certifies that no Default or Event of Default has occurred and is
continuing.





 




			
	*	 	Insert bracketed paragraph if New Lender is organized under the
law of a jurisdiction other than the United States of America or a state
thereof.




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     Please indicate the Administrative Agent’s consent to such Commitment Amount Increase by
signing the enclosed copy of this letter in the space provided below.



	 	 	 	 	 
	 	Very truly yours,



The J.M. Smucker Company

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Smucker Foods of Canada Co.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[New or existing Lender Increasing Commitments]

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 
	 


The undersigned hereby consents on this
___day of                     , ___ to the
above-requested Commitment Amount
Increase.




	 	 	 	 	 
	Bank of Montreal, as Administrative Agent

 	 	 
	By  	 	 	 
	 	Name  	 	 	 
	 	Title  	 	 	 
	 




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