Exhibit 10(j)


 


CREDIT
AGREEMENT


 


DATED AS
OF AUGUST 14, 2008


 


AMONG


 


BEMIS
COMPANY, INC.,


 


THE
LENDERS PARTY HERETO,


 


JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,

AS ADMINISTRATIVE AGENT,


 


AND


 


WACHOVIA
BANK, N.A.,

AS SYNDICATION AGENT,


 


J.P.
MORGAN SECURITIES INC.


AND


WACHOVIA
CAPITAL MARKETS, LLC

CO-LEAD ARRANGERS AND JOINT BOOK RUNNERS


 

















 


	
  ARTICLE
  I

  	
  DEFINITIONS AND INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Definitions

  	
  1

  
	
  1.2.

  	
  Interpretation

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  THE CREDITS

  	
  9

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Commitment

  	
  9

  
	
  2.2.

  	
  Ratable Loans

  	
  10

  
	
  2.3.

  	
  Types of Advances

  	
  10

  
	
  2.4.

  	
  Fees; Reductions in Aggregate Commitment

  	
  10

  
	
  2.5.

  	
  Minimum Amount of Each Advance

  	
  11

  
	
  2.6.

  	
  Payments and Prepayments

  	
  11

  
	
  2.7.

  	
  Method of Selecting Types and Interest Periods for New Advances

  	
  12

  
	
  2.8.

  	
  Conversion and Continuation of Outstanding Advances

  	
  12

  
	
  2.9.

  	
  Method of Borrowing

  	
  12

  
	
  2.10.

  	
  Changes in Interest Rate, etc

  	
  13

  
	
  2.11.

  	
  Rates Applicable After Default

  	
  13

  
	
  2.12.

  	
  Method of Payment

  	
  13

  
	
  2.13.

  	
  Noteless Agreement; Evidence of Indebtedness

  	
  13

  
	
  2.14.

  	
  Telephonic Notices

  	
  14

  
	
  2.15.

  	
  Interest Payment Dates; Interest and Fee Basis

  	
  14

  
	
  2.16.

  	
  Notification of Advances, Interest Rates, Prepayments and Commitment
  Reductions

  	
  14

  
	
  2.17.

  	
  Lending Installations

  	
  15

  
	
  2.18.

  	
  Non-Receipt of Funds by the Administrative Agent

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  YIELD PROTECTION; TAXES

  	
  15

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Yield Protection

  	
  15

  
	
  3.2.

  	
  Availability of Types of Advances

  	
  16

  
	
  3.3.

  	
  Funding Indemnification

  	
  16

  
	
  3.4.

  	
  Taxes

  	
  16

  
	
  3.5.

  	
  Lender Statements; Survival of Indemnity

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  CONDITIONS PRECEDENT

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Initial Advance

  	
  19

  
	
  4.2.

  	
  Each Advance

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  REPRESENTATIONS AND WARRANTIES

  	
  20

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Corporate Existence and Power

  	
  20

  
	
  5.2.

  	
  Corporate Authorization

  	
  20

  



 


i

















 


	
  5.3.

  	
  Binding Effect

  	
  20

  
	
  5.4.

  	
  Financial Statements

  	
  20

  
	
  5.5.

  	
  Litigation and Contingent Liabilities

  	
  21

  
	
  5.6.

  	
  Taxes

  	
  21

  
	
  5.7.

  	
  Governmental and other Approvals

  	
  21

  
	
  5.8.

  	
  Compliance with ERISA

  	
  21

  
	
  5.9.

  	
  Environmental Matters

  	
  21

  
	
  5.10.

  	
  Ownership of Properties; Liens

  	
  22

  
	
  5.11.

  	
  Subsidiaries

  	
  22

  
	
  5.12.

  	
  Investment Company Act

  	
  22

  
	
  5.13.

  	
  Regulation U

  	
  22

  
	
  5.14.

  	
  Accuracy of Disclosure

  	
  22

  
	
  5.15.

  	
  No Burdensome Restrictions

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  COVENANTS

  	
  23

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Financial Statements

  	
  23

  
	
  6.2.

  	
  Maintenance of Existence

  	
  24

  
	
  6.3.

  	
  Books and Records; Maintenance of Properties; Inspections

  	
  24

  
	
  6.4.

  	
  Compliance with Laws and Contractual Obligations

  	
  25

  
	
  6.5.

  	
  Notice of Proceedings

  	
  25

  
	
  6.6.

  	
  Use of Proceeds

  	
  25

  
	
  6.7.

  	
  Payment of Taxes

  	
  25

  
	
  6.8.

  	
  Insurance

  	
  25

  
	
  6.9.

  	
  Maximum Consolidated Debt to Total Capital Ratio

  	
  25

  
	
  6.10.

  	
  Minimum Consolidated Net Worth

  	
  25

  
	
  6.11.

  	
  Liens

  	
  25

  
	
  6.12.

  	
  Consolidations, Mergers and Sales of Assets

  	
  26

  
	
  6.13.

  	
  Transactions with Affiliates

  	
  26

  
	
  6.14.

  	
  Business

  	
  26

  
	
  6.15.

  	
  Burdensome Agreements

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  DEFAULTS

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Representations and Warranties

  	
  27

  
	
  7.2.

  	
  Nonpayment

  	
  27

  
	
  7.3.

  	
  Certain Covenants

  	
  27

  
	
  7.4.

  	
  Other Covenants

  	
  27

  



 


ii

















 


	
  7.5.

  	
  Cross-Default

  	
  27

  
	
  7.6.

  	
  Voluntary Bankruptcy, etc

  	
  27

  
	
  7.7.

  	
  Involuntary Bankruptcy, etc

  	
  28

  
	
  7.8.

  	
  Expropriation, etc

  	
  28

  
	
  7.9.

  	
  Judgements

  	
  28

  
	
  7.10.

  	
  ERISA

  	
  28

  
	
  7.11.

  	
  Change in Control

  	
  28

  
	
  7.12.

  	
  Invalidity of Agreement, etc

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  ACCELERATION, WAIVERS,
  AMENDMENTS AND REMEDIES

  	
  29

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Acceleration

  	
  29

  
	
  8.2.

  	
  Amendments

  	
  29

  
	
  8.3.

  	
  Preservation of Rights

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  GENERAL PROVISIONS

  	
  30

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Survival of Representations

  	
  30

  
	
  9.2.

  	
  Governmental Regulation

  	
  30

  
	
  9.3.

  	
  Headings

  	
  30

  
	
  9.4.

  	
  Entire Agreement

  	
  30

  
	
  9.5.

  	
  Several Obligations; Benefits of this Agreement

  	
  30

  
	
  9.6.

  	
  Expenses; Indemnification

  	
  30

  
	
  9.7.

  	
  Numbers of Documents

  	
  31

  
	
  9.8.

  	
  Accounting

  	
  31

  
	
  9.9.

  	
  Severability of Provisions

  	
  31

  
	
  9.10.

  	
  Nonliability of Lenders

  	
  32

  
	
  9.11.

  	
  Confidentiality

  	
  32

  
	
  9.12.

  	
  Nonreliance

  	
  32

  
	
  9.13.

  	
  Disclosure

  	
  32

  
	
  9.14.

  	
  USA PATRIOT ACT NOTIFICATION

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  THE ADMINISTRATIVE AGENT

  	
  33

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Appointment; Nature of Relationship

  	
  33

  
	
  10.2.

  	
  Powers

  	
  33

  
	
  10.3.

  	
  General Immunity

  	
  33

  
	
  10.4.

  	
  No Responsibility for Loans, Recitals, etc

  	
  33

  
	
  10.5.

  	
  Action on Instructions of Lenders

  	
  34

  
	
  10.6.

  	
  Employment of Agents and Counsel

  	
  34

  



 


iii

















 


	
  10.7.

  	
  Reliance on Documents; Counsel

  	
  34

  
	
  10.8.

  	
  Agent’s Reimbursement and Indemnification

  	
  34

  
	
  10.9.

  	
  Notice of Default

  	
  35

  
	
  10.10.

  	
  Rights as a Lender

  	
  35

  
	
  10.11.

  	
  Lender Credit Decision

  	
  35

  
	
  10.12.

  	
  Successor Agent

  	
  35

  
	
  10.13.

  	
  Agent and Arranger Fees

  	
  36

  
	
  10.14.

  	
  Delegation to Affiliates

  	
  36

  
	
  10.15.

  	
  Other Agents

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
  SETOFF; RATABLE PAYMENTS

  	
  37

  
	
   

  	
   

  	
   

  
	
  11.1.

  	
  Setoff

  	
  37

  
	
  11.2.

  	
  Sharing of Payments

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
  ASSIGNMENTS; PARTICIPATIONS; ETC

  	
  37

  
	
   

  	
   

  	
   

  
	
  12.1.

  	
  Successors and Assigns

  	
  37

  
	
  12.2.

  	
  Dissemination of Information

  	
  40

  
	
  12.3.

  	
  Tax Treatment

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  NOTICES

  	
  40

  
	
   

  	
   

  	
   

  
	
  13.1.

  	
  Notices; Effectiveness; Electronic Communication

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  	
  COUNTERPARTS; EFFECTIVENESS;
  ELECTRONIC EXECUTION

  	
  42

  
	
   

  	
   

  	
   

  
	
  14.1.

  	
  Counterparts

  	
  42

  
	
  14.2.

  	
  Electronic Execution of Assignments

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XV

  	
  CHOICE OF LAW; CONSENT TO
  JURISDICTION; WAIVER OF JURY TRIAL

  	
  42

  
	
   

  	
   

  	
   

  
	
  15.1.

  	
  CHOICE OF LAW

  	
  42

  
	
  15.2.

  	
  CONSENT TO JURISDICTION

  	
  42

  
	
  15.3.

  	
  WAIVER OF JURY TRIAL

  	
  43

  
	
   

  	
   

  	
   

  
	
  PRICING SCHEDULE

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A

  	
  COMPLIANCE CERTIFICATE

  	
   

  
	
  EXHIBIT B

  	
  ASSIGNMENT AND ASSUMPTION

  	
   

  



 


iv

















 


CREDIT
AGREEMENT


 


This Credit
Agreement dated as of August 14, 2008 is among Bemis Company, Inc., a
Missouri corporation (together with its successors and assigns, the “Borrower”),
the Lenders (as defined below), Wachovia Bank, N.A., as Syndication Agent, and
JPMorgan Chase Bank, National Association (“JPMCB”), as Administrative
Agent.  The parties hereto agree as
follows:


 


ARTICLE I

DEFINITIONS AND INTERPRETATION


 


1.1.          Definitions.  As used in this Agreement:


 


“Administrative
Agent” means JPMCB, together with its affiliates, in its capacity as
contractual representative of the Lenders pursuant to Article X,
and not in its individual capacity as a Lender, and any successor
Administrative Agent appointed pursuant to Article X.


 


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


 


“Advance”
means a borrowing by the Borrower hereunder (i) made by the Lenders on the
same Borrowing Date or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurodollar Loans, having the same Interest Period.


 


“Affiliate” of
any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.  A Person shall be deemed to control another
Person if the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person or
possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through ownership
of stock, by contract or otherwise.


 


“Aggregate
Commitment” means the aggregate of the Commitments of all Lenders, as reduced
from time to time pursuant to the terms hereof.


 


“Agreement”
means this Credit Agreement.


 


“Alternate
Base Rate” means, for any day, a rate of interest per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of the Federal
Funds Effective Rate for such day plus 1/2% per annum.


 


“Applicable
Margin” means, for any Interest Period, the percentage rate per annum
determined in accordance with the Pricing Schedule two Business Days prior to
the first day of such Interest Period.


 


“Arrangers”
means JPMorgan and Wachovia, Capital Markets, LLC and their respective
successors, in their capacities as Co-Lead Arrangers and Joint Book Runners.


 


1
















 


“Asset Sale”
means the sale, lease, assignment or other transfer for value by the Borrower
or any Subsidiary to any Person (other than the Borrower) of any asset or right
of the Borrower or such Subsidiary (including any sale or other transfer of
stock of any Subsidiary, whether by merger, consolidation or otherwise),
excluding (a) the sale or lease of inventory in the ordinary course of
business, (b) any sale or other disposition to the Company or a
Subsidiary, (c) any sale or other distribution of mutual fund shares or
similar investments and (d) the sale, lease, assignment or other transfer
for value of assets with a fair market value of less than $10,000,000 in any
single transaction or series of related transactions.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by Section 12.1(b)),
and accepted by the Administrative Agent, in the form of Exhibit B
or any other form approved by the Administrative Agent.


 


“Authorized
Officer” means any of the chief executive officer, the chief financial officer,
any vice president, the controller or the treasurer of the Borrower, or any
other officer of the Borrower from time to time designated by any of the
foregoing officers of the Borrower, in each case acting singly.


 


“Borrower” is
defined in the preamble.


 


“Borrowing
Date” means a date on which an Advance is made hereunder.


 


“Borrowing
Notice” is defined in Section 2.7.


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks generally are open
in Chicago and New York City for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the
Fedwire system and if such day relates to a Eurodollar Loan, a day on
which dealings in Dollars are carried on in the London interbank market.


 


“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance
with GAAP.


 


“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with GAAP.


 


“Change in
Control” means the occurrence of any of the following events:  (x) any “person” or “group” (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934 (the “Exchange
Act”) becomes the beneficial owner (as defined in Rule 13d 3 under the
Exchange Act) of 30% or more of the fully diluted Voting Securities of the
Borrower or (y) individuals who at the beginning of any period of two
consecutive calendar years constituted the board of directors of the Borrower
(together with any new directors whose election by the board of directors of
the Borrower or whose nomination for election by the Borrower’s shareholders
was approved by the members of the board of directors of the Borrower then
still in office who


 


2

















 


either were members of the board of directors of the Borrower at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
members of the board of directors of the Borrower.


 


“Code” means
the Internal Revenue Code of 1986.


 


“Commitment”
means, for each Lender, the obligation of such Lender to make Loans in an
aggregate amount not exceeding the amount set forth opposite its signature
below, as modified as a result of any assignment pursuant to Section 12.1
or as otherwise reduced from time to time pursuant to the terms hereof.


 


“Consolidated
Debt” means, at any time, the consolidated Debt of the Borrower and its
Consolidated Subsidiaries at such time.


 


“Consolidated
Net Worth” means, at any time, the consolidated stockholders’ equity of the
Borrower and its Consolidated Subsidiaries at such time.


 


“Consolidated
Subsidiary” means any Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated financial
statements.


 


“Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.


 


“Conversion/Continuation
Notice” is defined in Section 2.8.


 


“Debt” of any
Person means, without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all obligations of such
Person to reimburse or indemnify the issuer of a letter of credit or Guarantee
for drawings or payments thereunder, (vi) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt is assumed by such
Person, and (vii) all Debt of others Guaranteed by such Person.


 


“Default”
means an event described in Article VII.


 


“Dollars” and “$”
shall mean the lawful currency of the United States of America.


 


“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.


 


3

















 


“ERISA” means
the Employee Retirement Income Security Act of 1974.


 


“Eurodollar
Advance” means an Advance which, except as otherwise provided in Section 2.10,
bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Loan” means a Loan which, except as otherwise provided in Section 2.10,
bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Rate” means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Reference
Rate applicable to such Interest Period divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period, if any, plus (ii) the Applicable Margin.


 


“Eurodollar
Reference Rate” means, for any Interest Period, the British Bankers’
Association LIBOR rate for deposits in Dollars for a period comparable to such
Interest Period as reported by any generally recognized financial information
service as of 11:00 a.m. (London Time) two Business Days prior to the
first day of such Interest Period; provided that if no such rate is
available, the Eurodollar Reference Rate for such  Interest Period shall instead be the rate
determined by the Administrative Agent to be the rate at which JPMCB offers to
place deposits in Dollars for a period comparable to such Interest Period with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London Time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of JPMCB’s relevant Eurodollar Loan


 


“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation and
the Administrative Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or the Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative Agent’s or such Lender’s principal
executive office or such Lender’s applicable Lending Installation is located.


 


“Existing Credit Facilities” means the Amended and Restated Long-Term
Credit Agreement and the 364-Day Credit Agreement, each dated as of April 29,
2008, among  the Borrower, certain
Subsidiaries of the Borrower, various lenders, Wachovia Bank, N.A., as
Syndication Agent, U.S. Bank National Association and Wells Fargo Bank, N.A.,
as Co-Documentation Agents, and JPMCB, as Administrative Agent.


 


“Facility Fee
Rate” means, at any time, the percentage rate per annum at which facility fees
are accruing pursuant to Section 2.4.1 at such time as set forth in
the Pricing Schedule.


 


“Facility
Termination Date” means the earlier of (a) April 28, 2009 and (b) the
date on which the Commitments are reduced to zero pursuant to Section 2.4.4
or terminated pursuant to Section 8.1.


 


“Federal Funds
Effective Rate” means, for any day, an interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such


 


4

















 


day (or, if such day is not a Business Day, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations at approximately 10:00 a.m. (Chicago time) on such day on
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.


 


“Floating Rate
Advance” means an Advance that, except as otherwise provided in Section 2.11,
bears interest at the Alternate Base Rate.


 


“Floating Rate
Loan” means a Loan that, except as otherwise provided in Section 2.11,
bears interest at the Alternate Base Rate.


 


“GAAP” means
generally accepted accounting principles as in effect from time to time in the
United States.


 


“Guarantee” by
any Person means any obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person or in any manner providing for the payment of any Debt of any other
Person or otherwise protecting the holder of such Debt against loss (whether by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise); provided
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.  The
term “Guarantee” used as a verb has a corresponding meaning.


 


“Hazardous
Substance” means any toxic, radioactive, caustic or otherwise hazardous
substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any
of the foregoing characteristics.


 


“Interest
Period” means, with respect to a Eurodollar Advance, a period commencing on a
Business Day selected by the Borrower and ending on the numerically
corresponding date one, two, three or six months thereafter; provided
that (a) if there is no numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month; (b) if
an Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, unless such
next succeeding Business Day falls in a new calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day; and (c) the
Borrower may not select an Interest Period ending after the scheduled Facility
Termination Date.


 


“JPMorgan”
means J.P. Morgan Securities Inc.


 


“JPMCB” is
defined in the preamble.


 


“Lenders”
means the lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns.


 


5

















 


“Lending
Installation” means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent listed on the signature pages hereof or in an Administrative
Questionnaire or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.17.


 


“Lien” means
any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).


 


“Loan” means,
with respect to a Lender, any loan made by such Lender pursuant to Article II
(or any conversion or continuation thereof).


 


“Material
Adverse Effect” means a material adverse effect on (i) the financial
position or business of the Borrower and its Subsidiaries taken as a whole or (ii) the
validity or enforceability of this Agreement or the rights or remedies of the
Administrative Agent or the Lenders hereunder.


 


“Material
Subsidiary” means at any time a Subsidiary which as of such time meets the
definition of a “significant subsidiary” contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.


 


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


 


“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining agreement or
any other arrangement to which the Borrower or any member of the Controlled
Group is a party to which more than one employer is obligated to make
contributions.


 


“Net
Cash Proceeds” means:


 


(a)           with respect to any Asset Sale, the
aggregate cash proceeds (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment receivable or otherwise,
but only as and when received) received by the Borrower or any Subsidiary
pursuant to such Asset Sale, net of (i) the direct costs relating to such
Asset Sale (including sales commissions and legal, accounting and investment
banking fees), (ii) taxes paid or reasonably estimated by the Borrower to
be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), and (iii) amounts
required to be applied to the repayment of any Debt secured by a Lien on the
asset subject to such Asset Sale (other than Debt hereunder); and


 


(b)           with respect to any issuance of
Equity Interests or Debt, the aggregate cash proceeds received by the Borrower
or any Subsidiary pursuant to such issuance, net of the direct costs relating
to such issuance (including sales and underwriter’s discounts and commissions
and legal, accounting and investment banking fees).


 


“Non-U.S.
Lender” is defined in Section 3.4(d).


 


6

















 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to any Lender, the Administrative Agent or any
indemnified party arising under this Agreement.


 


“Other Taxes”
is defined in Section 3.4(c).


 


“Participant”
is defined in Section 12.1(c).


 


“Payment Date”
means the last Business Day of each calendar quarter.


 


“PBGC” means
the Pension Benefit Guaranty Corporation, or any successor thereto.


 


“Person” means
any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization,
or any government or political subdivision or any agency, department or
instrumentality thereof.


 


“Plan” means
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as
to which the Borrower or any member of the Controlled Group may have any
liability.


 


“Pricing
Schedule” means the Schedule attached hereto identified as such.


 


“Prime Rate”
means the rate of interest per annum publicly announced from time to time by
JPMCB as its prime rate in effect at its office located at 270 Park Avenue, New
York, New York; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.


 


“Property” of
a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.


 


“Pro Rata
Share” means, with respect to any Lender on any date of determination, the
percentage which the amount of such Lender’s Commitment is of the Aggregate
Commitment (or, if the Commitments have terminated, which (a) the sum of
the principal amount of such Lender’s Loans is of (b) the aggregate
principal amount of all Loans).  For
purposes of determining liability for any indemnity obligation under Section 2.18(j) or
10.8, each Lender’s Pro Rata Share shall be determined as of the date
the Administrative Agent notifies the Lenders of such indemnity obligation (or,
if such notice is given after termination of this Agreement, as of the date of
such termination).


 


“Regulation D”
means Regulation D of the Board of Governors of the Federal Reserve System.


 


“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System.


 


7

















 


“Related
Parties” means, with respect to any Person, such Person’s Affiliates and the
respective directors, officers, employees, agents, advisors and attorneys of
such Person and such Person’s Affiliates.


 


“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event; provided that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.


 


“Reports” is
defined in Section 9.6.


 


“Required
Lenders” means Lenders having aggregate Pro Rata Shares in excess of 50%; provided
that if at any time there are only two Lenders, “Required Lenders” shall mean
both Lenders.


 


“Reserve
Requirement” means, with respect to an Interest Period, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on Eurodollar liabilities.


 


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


 


“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.  Unless otherwise expressly provided, all
references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.


 


“Substantial
Portion” means, with respect to the Property of the Borrower and its
Subsidiaries, Property which represents more than 15% of the consolidated total
assets of the Borrower and its Consolidated Subsidiaries or property which is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Consolidated Subsidiaries, in
each case, as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made (or if financial
statements have not been delivered hereunder for that month which begins the
twelve-month period, then the financial statements delivered hereunder for the
quarter ending immediately prior to that month).


 


“Taxes” means
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes and
Other Taxes.


 


8
















 


“Total Capital”
means, at any time, the sum of (i) Consolidated Debt plus (ii) deferred
taxes plus (iii) Consolidated Net Worth at such time.


 


“Transferee”
is defined in Section 12.2.


 


“Type” means,
with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Loan.


 


“Unfunded
Vested Liabilities” means, with respect to any Plan, the amount, if any, by
which the present value of all vested benefits under such Plan exceeds the fair
market value of all Plan assets allowable to such benefits, as determined on
the most recent valuation date of such Plan, but only to the extent that excess
represents a potential liability of the Borrower or any member of the
Controlled Group to the PBGC or to such Plan under Title IV of ERISA.


 


“Unmatured
Default” means an event that, but for the lapse of time or the giving of
notice, or both, would constitute a Default.


 


“Voting
Securities” means any securities having ordinary power to vote for the election
of directors.


 


1.2.         Interpretation.


 


(a)           The meanings of defined
terms are equally applicable to the singular and plural forms of such terms.


 


(b)           Article, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.


 


(c)           The term “including” is
not limiting and means “including without limitation.”


 


(d)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until” each mean “to but
excluding”, and the word “through” means “to and including.”


 


(e)           Unless otherwise
expressly provided herein, (i) references to agreements (including this
Agreement) and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Agreement; and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such statute or regulation.


 


ARTICLE II

THE CREDITS


 


2.1.          Commitment.  From the date of this Agreement to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the Borrower from time
to time; provided that (i) the aggregate principal amount of all 


 


9

















 


outstanding Loans shall not at any time exceed the Aggregate Commitment
and (ii) the aggregate principal amount of all outstanding Loans of any
Lender shall not at any time exceed such Lender’s Commitment.  Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date.  The Commitments shall
expire on the Facility Termination Date.


 


2.2.          Ratable Loans.  Each Advance shall consist of Loans made to
the Borrower by the Lenders ratably in accordance with their respective Pro
Rata Shares.


 


2.3.          Types of Advances.  Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, as selected by the Borrower in
accordance with Sections 2.7 and 2.8.


 


2.4.          Fees; Reductions in
Aggregate Commitment.


 


2.4.1.  Facility Fee.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee at a per
annum rate equal to the Facility Fee Rate on the sum of such Lender’s
Commitment (whether used or unused) from the date hereof to the Facility
Termination Date (and, if any Loans remain outstanding after the close of
business in Chicago, Illinois on the Facility Termination Date, thereafter on
the outstanding principal amount of all Loans owed to each Lender).  The facility fee shall be payable on each
Payment Date, on the Facility Termination Date and, if applicable, thereafter
on demand.


 


2.4.2.  Funding Fee.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a funding fee in an amount
equal to 0.50% of such Lender’s Commitment as of, and payable on, the date (if
any) of the Initial Advance.


 


2.4.3.  Voluntary Reduction of
Aggregate Commitment.  The Borrower
may permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in integral multiples of $5,000,000, upon at least five
Business Days’ written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction; provided  that the Aggregate Commitment may not be
reduced below the aggregate principal amount of all outstanding Loans.


 


2.4.4.  Mandatory Reduction of
Aggregate Commitment.  Prior to or
concurrently with any reduction of the “Commitments” under and as defined in an
Existing Credit Facility, the Borrower will reduce the Aggregate Commitment to
zero.  In addition, if the Borrower or
any Subsidiary receives any Net Cash Proceeds from any of the following events,
the Aggregate Commitment shall be reduced as follows:


 


(a)           Promptly
upon receipt of any Net Cash Proceeds of any Asset Sale by the Borrower or any
Subsidiary, the Aggregate Commitment shall be reduced in an amount equal to the
excess (rounded down, if necessary, to an integral multiple of $1,000,000) of (x) all
such Net Cash Proceeds received on or after the date of this Agreement over (y) the
amount of such Net Cash Proceeds previously used to reduce the Aggregate
Commitment pursuant to this clause (a).


 


10

















 


(b)           Promptly upon receipt
of any Net Cash Proceeds of any issuance of Debt by the Borrower or any
Subsidiary (other than issuance of (x) commercial paper in an aggregate
amount not at any time exceeding $625,000,000 and (y) Debt under the
Existing Credit Facilities), the Aggregate Commitment shall be reduced in an
amount equal to the excess (rounded down, if necessary, to an integral multiple
of $1,000,000) of (i) all such Net Cash Proceeds received on or after the
date of this Agreement over (i) the amount of such Net Cash Proceeds
previously used to reduce the Aggregate Commitment pursuant to this clause
(b).


 


(c)           Promptly upon receipt
of any Net Cash Proceeds from the issuance of any Equity Interests by the
Borrower or any Subsidiary (other than Equity Interests issued by a Subsidiary
to the Borrower or another Subsidiary), the Aggregate Commitment shall be
reduced in an amount equal to the excess (rounded down, if necessary, to an
integral multiple of $1,000,000) of (i) all such Net Cash Proceeds
received on or after the date of this Agreement over (ii) the amount of
such Net Cash Proceeds previously used to reduce the Aggregate Commitment
pursuant to this clause (c).


 


2.5.          Minimum Amount of
Each Advance.  Each Eurodollar
Advance shall be in the amount of $5,000,000 or a higher integral multiple of
$1,000,000.  Each Floating Rate Advance
shall be in the amount of $5,000,000 or a higher integral multiple of
$1,000,000; provided that any Floating Rate Advance may be in the amount
of the unused Aggregate Commitment.


 


2.6.          Payments and
Prepayments.


 


2.6.1.  Payment at Maturity.  The Borrower shall pay all its outstanding
Advances and all its other unpaid Obligations on the Facility Termination Date.


 


2.6.2.  Optional Payments.  The Borrower may from time to time prepay,
without penalty or premium, all outstanding Floating Rate Advances or, in an
aggregate amount of $5,000,000 or higher integral multiples of $1,000,000, any
portion of the outstanding Floating Rate Advances upon two Business Days’ prior
notice to the Administrative Agent.  The
Borrower may from time to time prepay, subject to the payment of any funding
indemnification amounts required by Section 3.3 but without penalty
or premium, all outstanding Eurodollar Advances or, in the aggregate amount of
$5,000,000 or a higher integral multiple of $1,000,000, any portion of the
outstanding Eurodollar Advances upon three Business Days’ prior notice to the
Administrative Agent.


 


2.6.3.  Mandatory Prepayments.


 


(a)           If,
after giving effect to any mandatory reduction of the Aggregate Commitment
pursuant to Section 2.4.4, the aggregate principal amount of all
Loans exceeds the Aggregate Commitment, the Borrower will prepay Loans in an
amount equal to such excess.


 


(b)           Prior
to or concurrently with any prepayment of loans under an Existing Credit
Facility, the Borrower will prepay all outstanding Loans.


 


11

















 


2.7.          Method
of Selecting Types and Interest Periods for New Advances.  The Borrower shall select the Type of Advance
and, in the case of a Eurodollar Advance, the Interest Period applicable
thereto from time to time.  The Borrower
shall give the Administrative Agent irrevocable notice (a “Borrowing Notice”)
not later than 10:00 a.m. (Chicago time) at least one Business Day before
the Borrowing Date of each Floating Rate Advance and three Business Days before
the Borrowing Date for each Eurodollar Advance, specifying:


 


(i)            the Borrowing Date,
which shall be a Business Day, of such Advance;


 


(ii)           the aggregate amount of
such Advance;


 


(iii)          the Type of Advance
selected; and


 


(iv)          in the case of a
Eurodollar Advance, the Interest Period applicable thereto.


 


2.8.          Conversion
and Continuation of Outstanding Advances. 
Each Floating Rate Advance shall continue as a Floating Rate Advance
unless and until converted into a Eurodollar Advance pursuant to this Section 2.8
or repaid in accordance with Section 2.6.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Advance shall be automatically converted into a
Floating Rate Advance unless (x) repaid in accordance with Section 2.6
or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end
of such Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for a new Interest Period or be converted into a Floating
Rate Advance.


 


Subject to Section 2.5, the Borrower may elect from time to
time to convert all or any part of an Advance to the other Type of Advance or
to continue any Eurodollar Advance for a new Interest Period; provided
that any conversion or continuation of any Eurodollar Advance shall be made on,
and only on, the last day of an Interest Period applicable thereto.  The Borrower shall give the Administrative
Agent irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of an Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Chicago time) at least one Business Day, in the case of a
conversion into a Floating Rate Advance, or three Business Days, in the case of
a conversion into or continuation of a Eurodollar Advance, prior to the date of
the requested conversion or continuation, specifying:


 


(i)            the requested date,
which shall be a Business Day, of such conversion or continuation; and


 


(ii)           the amount and Type of
Advance into which such Advance is to be converted or continued and, in the
case of a conversion into or continuation of a Eurodollar Advance, the duration
of the Interest Period applicable thereto.


 


2.9.          Method
of Borrowing.


 


(a)           On
each Borrowing Date, each Lender shall make available its Loan in accordance
with its Pro Rata Share not later than noon (Chicago time), in Federal or other
funds


 


12

















 


immediately available to the Administrative Agent, in Chicago, Illinois
at its address specified in or pursuant to Article XIII.


 


(b)           Unless the
Administrative Agent has received written notice that any applicable condition
specified in Article IV has not been satisfied with respect to a
requested Advance, the Administrative Agent will make the funds received from
the Lenders available to the Borrower at the Administrative Agent’s aforesaid
address.


 


2.10.        Changes in Interest
Rate, etc.  Each Floating Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance to the date such Advance becomes due or is
converted into a Eurodollar Advance, at the Alternate Base Rate for such
day.  Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate.  Each Eurodollar Advance shall bear interest
on the outstanding principal amount thereof from the first day of each Interest
Period applicable thereto to the last day of such Interest Period at the
interest rate determined by the Administrative Agent as applicable to such
Eurodollar Advance for such Interest Period based upon the Borrower’s
selections under Sections 2.8 and 2.9 and otherwise in accordance
with the terms hereof.


 


2.11.        Rates Applicable After
Default.  Notwithstanding anything to
the contrary contained in Section 2.7, 2.8 or 2.10,
during the continuance of a Default or Unmatured Default the Required Lenders
may, at their option, by notice to the Borrower (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (a) no Advance may be made as, converted into or continued as
a Eurodollar Advance and/or (b) each Eurodollar Advance shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and/or (c) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Alternate Base Rate in effect from time to time plus 2% per annum; provided
that, during the continuance of a Default under Section 7.6 or 7.7,
the interest rates set forth in clauses (b) and (c) above
shall be applicable to all Advances without any election or action on the part
of the Administrative Agent or any Lender.


 


2.12.        Method
of Payment.  All payments of the
Obligations hereunder shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the Administrative Agent at the
Administrative Agent’s address specified pursuant to Article XIII,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (Chicago time) on
the date when due and shall be applied ratably by the Administrative Agent among
the Lenders in accordance with their Pro Rata Shares.  Each payment delivered to the Administrative
Agent for the account of any Lender shall be delivered promptly by the
Administrative Agent to such Lender.  The
Borrower authorizes the Administrative Agent to charge any account of the
Borrower maintained with JPMCB or any of its Affiliates for each payment of
principal, interest and fees as it becomes due hereunder.


 


2.13.        Noteless
Agreement; Evidence of Indebtedness. 
(a)  Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,


 


13

















 


including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.


 


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


 


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


 


2.14.        Telephonic Notices.  The Borrower hereby authorizes the Lenders and
the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the Borrower, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices for Advances and Conversion/Continuation Notices to be given
telephonically.  The Borrower agrees to
deliver promptly to the Administrative Agent, upon request of the
Administrative Agent or any Lender, a written confirmation (signed by an
Authorized Officer) of each telephonic notice. 
If the written confirmation differs in any material respect from the
action taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.


 


2.15.        Interest Payment Dates;
Interest and Fee Basis.  Interest
accrued on each Floating Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which such Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity.  Interest
accrued on that portion of the outstanding principal amount of any Floating
Rate Advance converted into a Eurodollar Advance on a day other than a Payment
Date shall be payable on the date of conversion.  Interest accrued on each Eurodollar Advance
shall be payable on the last day of each Interest Period therefor, on any date
on which such Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity.  Interest
accrued on each Eurodollar Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval
during such Interest Period.  Interest
and facility fees shall be calculated for actual days elapsed on the basis of a
360-day year.  Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (Chicago time) at the place of
payment.  If any payment of principal of
or interest on an Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.


 


2.16.        Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions.  Promptly after receipt thereof, the
Administrative Agent will notify each Lender of


 


14

















 


the contents of each Aggregate Commitment reduction notice, Borrowing
Notice, Conversion/Continuation Notice, and repayment notice received by it
hereunder.  The Administrative Agent will
notify each Lender of the interest rate applicable to each Eurodollar Advance
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.


 


2.17.        Lending
Installations.  Each Lender will book
its Loans at the Lending Installation listed on its Administrative
Questionnaire or such other Lending Installation designated by such Lender in
accordance with the final sentence of this Section 2.17.  All terms of this Agreement shall apply to
any such Lending Installation and the Loans made hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation.  Each Lender may, by written notice to the
Administrative Agent and the Borrower in accordance with Article XIII,
designate replacement or additional Lending Installations through which Loans
will be made by it and for whose account Loan payments are to be made.


 


2.18.        Non-Receipt
of Funds by the Administrative Agent. 
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (a) in the case of a Lender, the proceeds
of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Administrative Agent for the account of the Lenders,
that it does not intend to make such payment, the Administrative Agent may
assume that such payment has been made. 
The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon
such assumption.  If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the
Administrative Agent, the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan; or (ii) in
the case of payment by a Lender, (x) for the first three Business Days
after demand, the Federal Funds Effective Rate, and (y) thereafter, the
interest rate applicable to the relevant Loan.


 


ARTICLE III

YIELD PROTECTION; TAXES


 


3.1.          Yield Protection.  If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any governmental
or quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or
any applicable Lending Installation with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency:


 


(a)           subjects any Lender or
any applicable Lending Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to Excluded Taxes) to any Lender
in respect of its Eurodollar Loans or participations therein;


 


15

















 


(b)           imposes or increases or
deems applicable any reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the interest
rate applicable to Eurodollar Advances); or


 


(c)           imposes
any other condition the result of which is to increase the cost to any Lender
or any applicable Lending Installation of making, funding or maintaining its
Eurodollar Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with its Eurodollar Loans, or
requires any Lender or any applicable Lending Installation to make any payment
calculated by reference to the amount of Eurodollar Loans held or interest
received by it, by an amount deemed material by such Lender,


 


and the result
of any of the foregoing is to increase the cost to such Lender or such Lending
Installation of making or maintaining its Eurodollar Loans or Commitment or to
reduce the return received by such Lender or such applicable Lending Installation
in connection with such Eurodollar Loans or Commitment, then, within 15 days of
demand by such Lender, the Borrower shall pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received.


 


3.2.          Availability
of Types of Advances.  If any Lender
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (i) deposits in Dollars with a maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the interest rate applicable
to Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Administrative Agent shall suspend
the availability of Eurodollar Advances and require any affected Eurodollar
Advances to be converted to Floating Rate Advances, subject to the payment of
any funding indemnification amounts required by Section 3.3.


 


3.3.          Funding
Indemnification.  If any payment of a
Eurodollar Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Advance.


 


3.4.          Taxes.  (a)  All payments by the Borrower to or
for the account of any Lender or the Administrative Agent hereunder shall be
made free and clear of and without deduction for any and all Taxes.  If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.4) such
Lender or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with


 


16

















 


applicable law and (iv) the Borrower shall furnish to the Administrative
Agent the original copy of a receipt evidencing payment thereof within 30 days
after such payment is made.


 


(b)           In
addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution or
delivery of, or otherwise with respect to, this Agreement (“Other Taxes”).


 


(c)           The
Borrower hereby agrees to indemnify the Administrative Agent and each Lender
for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under this Section 3.4) paid by the
Administrative Agent or such Lender as a result of its Commitment, any Loan
made by it, or otherwise in connection with its participation in this Agreement
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. 
Payments due under this indemnification shall be made within 30 days of
the date the Administrative Agent or such Lender makes demand therefor pursuant
to Section 3.5.


 


(d)           Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not
more than ten Business Days after the date of this Agreement, (i) deliver
to the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii) deliver
to the Administrative Agent a United States Internal Revenue Form W-8 or
W-9, as the case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. 
Each Non-U.S. Lender further undertakes to deliver to the Borrower and
the Administrative Agent (x) renewals or additional copies of such form
(or any successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in
the most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Administrative
Agent.  All forms or amendments described
in the preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form or
amendment with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.


 


(e)           For
any period during which a Non-U.S. Lender has failed to provide the Borrower
with an appropriate form pursuant to clause (d) above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.4 with respect to Taxes imposed by the United
States; provided that, should a Non-U.S. Lender which is otherwise
exempt from or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under clause (iv) above,



 


17

















 


the Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such Taxes.


 


(f)            Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement pursuant to the law of any
relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy
to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or
at a reduced rate.


 


(g)           If
the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such Lender
shall indemnify the Administrative Agent fully for all amounts paid, directly
or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent,
which attorneys may be employees of the Administrative Agent).  The obligations of the Lenders under this Section 3.4(g) shall
survive the payment of the Obligations and termination of this Agreement.


 


3.5.          Lender
Statements; Survival of Indemnity. 
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Sections 3.1, 3.3
and 3.4 or to avoid the unavailability of Eurodollar Advances under Section 3.2,
so long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender.  Each
Lender shall deliver a written statement to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1,
3.3 or 3.4.  Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. 
Determination of amounts payable under such Sections in connection with
a Eurodollar Loan shall be calculated as though the applicable Lender funded
its Eurodollar Loan through the purchase of a Dollar deposit with a maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not.  Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement.  The obligations of the Borrower under Sections
3.1, 3.3 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.


 


18
















 


ARTICLE IV

CONDITIONS PRECEDENT


 


4.1.         Initial Advance.  The obligation of the Lenders to make the
initial Advance is subject to the condition precedent that the Borrower has
furnished to the Administrative Agent with sufficient copies for the Lenders:


 


(a)           Copies of its articles
or certificate of incorporation, together with all amendments, and a
certificate of good standing, each certified by the appropriate governmental
officer in the State of Missouri, as well as any other information required by Section 326
of the USA Patriot Act or necessary for the Administrative Agent or any Lender
to verify the identity of the Borrower as required by Section 326 of the
USA Patriot Act.


 


(b)           Copies,
certified by the Secretary or an Assistant Secretary of the Borrower, of its
by-laws and of the resolutions of its Board of Directors authorizing the
execution, delivery and performance of this Agreement.


 


(c)           An
incumbency certificate, executed by the Secretary or an Assistant Secretary of
the Borrower, which shall identify by name and title and bear the signatures of
the Authorized Officers and any other officers of the Borrower authorized to
sign this Agreement, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in writing by
the Borrower.


 


(d)           A
certificate, signed by the chief financial officer of the Borrower, stating
that on the date of the initial Advance, no Default or Unmatured Default has
occurred and is continuing.


 


(e)           A
written opinion of counsel to the Borrower, addressed to the Lenders and in
substance reasonably acceptable to the Administrative Agent.


 


(f)            Certified
copies of all required consents and approvals from third parties, including
governmental approvals, with respect to the execution and delivery by the
Borrower of, and the performance by the Borrower of its obligations under, this
Agreement.


 


(g)           Such
other documents as any Lender or its counsel may have reasonably requested.


 


4.2.         Each
Advance.  The Lenders shall not be
required to make any Advance (including the initial Advance) unless on the
applicable Borrowing Date:


 


(a)           No
Default or Unmatured Default exists.


 


(b)           The
representations and warranties contained in Article V (other than (i) the
representation and warranty in Section 5.4 and (ii) solely
with respect to Advances the proceeds of which will be used to pay maturing
commercial paper of the Borrower, the representation and warranty in Section 5.5)
are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.


 


19

















 


(c)           All
legal matters incident to the making of such Advance shall be satisfactory to
the Lenders and their counsel.


 


(d)           The
Existing Credit Facilities are fully utilized (or will be fully utilized after
giving effect to any credit extension made thereunder concurrently with such
Advance).


 


Each delivery
of a Borrowing Notice shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(a) and (b) have
been satisfied.  Any Lender may require a
duly completed compliance certificate in substantially the form of Exhibit A
as a condition to making a Loan.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


The Borrower
represents and warrants to the Lenders that:


 


5.1.         Corporate
Existence and Power.  Each of the
Borrower and each Material Subsidiary is duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its formation, has all
power and authority to carry on its business as now being conducted and to own
its properties and is duly licensed or qualified and in good standing in each
other jurisdiction in which its properties are located or in which failure to
qualify would materially and adversely affect the conduct of its business or
the enforceability of contractual rights of the Borrower or such Subsidiary.


 


5.2.         Corporate
Authorization.  The execution,
delivery and performance by the Borrower of this Agreement are within the
Borrower’s corporate power, have been duly authorized by all necessary
corporate action and will not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate or articles of
incorporation or by-laws of the Borrower, or of any judgment, order, decree,
agreement or instrument binding on the Borrower or result in the creation of any
Lien upon any property or asset of the Borrower or any Subsidiary.


 


5.3.         Binding
Effect.  This Agreement constitutes
the valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with its terms.


 


5.4.         Financial
Statements.


 


(a)           The
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
at December 31, 2007 and the related consolidated statements of income and
cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal
year then ended, certified by PriceWaterhouseCoopers, LLP, certified public
accountants, and set forth in the Borrower’s 2007 Form 10-K, a copy of
which has been delivered to each of the Lenders, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries at such date and the
consolidated results of operations for such fiscal year.


 


20

















 


(b)           The
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at June 30, 2008 and the related consolidated statements
of income and cash flows of the Borrower and its Consolidated Subsidiaries for
the six months then ended, set forth in the Borrower’s quarterly report for the
fiscal quarter ended June 30, 2008 as filed with the Securities and
Exchange Commission on Form 10-Q, a copy of which has been delivered to
each of the Lenders, fairly present in accordance with generally accepted
accounting principles, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as at such date and the consolidated results of
operations for such period.


 


(c)           No
material adverse change has occurred in the financial position, results of operations
or business of the Borrower and its Consolidated Subsidiaries since December 31,
2007.


 


5.5.         Litigation
and Contingent Liabilities.  There
are no actions, suits or proceedings pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any Subsidiary in
any court or before or by any governmental department, agency or
instrumentality which could reasonably be expected to have a Material Adverse
Effect.  Other than any liability
incident to such litigation or proceedings, neither the Borrower nor any
Subsidiary has any contingent liabilities which are material to the Borrower
and its Subsidiaries taken as a whole and which are not provided for or
disclosed in Schedule 5.5.


 


5.6.         Taxes.  The Borrower and each of its Subsidiaries has
filed (or has obtained extensions of the time by which it is required to file)
all United States federal income tax returns and all other material tax returns
required to be filed by it and has paid all taxes shown due on the returns so
filed as well as all other taxes, assessments and governmental charges which
have become due, except (a) such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided and (b) other
taxes that do not at any time exceed $1,000,000 in the aggregate.


 


5.7.         Governmental
and other Approvals.  No approval,
consent or authorization of or filing or registration with any governmental
authority or body is necessary for the execution, delivery or performance by
the Borrower of this Agreement or for the performance by the Borrower of any of
the terms or conditions hereof, except for such approvals, consents or
authorizations (copies of which have been delivered to the Lenders) as have
been obtained and are in full force and effect.


 


5.8.         Compliance
with ERISA.  Each member of the
Controlled Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and has not incurred liabilities which are due and payable
aggregating in excess of $5,000,000 to the PBGC or a Plan under Title IV of
ERISA.


 


5.9.         Environmental
Matters.  In the ordinary course of
its business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating


 


21

















 


expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including employees, and any
related costs and expenses).  On the
basis of such review, the Borrower has reasonably concluded that such
associated liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.


 


5.10.       Ownership
of Properties; Liens.  The Borrower
and its Subsidiaries own good and marketable title to, or a valid leasehold
interest in, all Properties which are material to the Borrower and its
Subsidiaries taken as a whole, real and personal, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges and claims
(including infringement claims with respect to patents, trademarks, copyrights
and the like) except as permitted pursuant to Section 6.11.


 


5.11.       Subsidiaries.  As of the date hereof, the Borrower has no
Subsidiaries except those listed in Schedule 5.11, and each Subsidiary
which is a Material Subsidiary is designated thereon.


 


5.12.       Investment
Company Act.  Neither the 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.


 


5.13.       Regulation
U.  The Borrower is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock.


 


5.14.       Accuracy
of Disclosure.  All information
heretofore or contemporaneously herewith furnished by the Borrower or any
Subsidiary to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement and the transactions contemplated hereby is, and
all information hereafter furnished by or on behalf of the Borrower or any
Subsidiary to the Administrative Agent or any Lender pursuant hereto or in
connection herewith will be, when taken together, true and accurate in every
material respect on the date as of which such information is dated or
certified, and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not misleading.


 


5.15.       No
Burdensome Restrictions.  Neither the
Borrower nor any Subsidiary is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


22

















 


ARTICLE VI

COVENANTS


 


During the
term of this Agreement, unless the Required Lenders shall otherwise consent in
writing:


 


6.1.         Financial
Statements.  The Borrower will
deliver, or caused to be delivered, to each of the Lenders:


 


(a)           as
soon as available and in any event within 120 days after the end of each fiscal
year of the Borrower (or, if earlier, 30 days after the date customarily
required to be filed by the Borrower with the Securities and Exchange
Commission), a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such year, and consolidated statements of income
and cash flows of the Borrower and its Consolidated Subsidiaries for such year,
setting forth in each case in comparative form corresponding consolidated
figures from the preceding fiscal year, all reported on in a manner acceptable
to the Securities and Exchange Commission by PriceWaterhouseCoopers, LLP or
other independent certified public accountants of nationally recognized
standing;


 


(b)           as
soon as available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Borrower (or, if earlier, 15
days after the date required to be filed by the Borrower with the Securities
and Exchange Commission), a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarter and the related
consolidated statements of income and cash flow of the Borrower and its
Consolidated Subsidiaries for such quarter and for the portion of the Borrower’s
fiscal year ended at the end of such quarter setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower’s previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief financial
officer or the chief accounting officer of the Borrower;


 


(c)           simultaneously
with the delivery of each set of financial statements referred to in clauses
(a) and (b) above, a certificate of the chief financial
officer or the chief accounting officer of the Borrower (i) setting forth
in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Sections 6.9 and 6.10
on the date of such financial statements and (ii) stating whether there
exists on the date of such certificate any Default or Unmatured Default and, if
any Default or Unmatured Default exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;


 


(d)           simultaneously
with the delivery of each set of financial statements referred to in clause (a) above,
a statement of the firm of independent public accountants which reported on
such statements (i) to the effect that nothing has come to their attention
to cause them to believe that there existed on the date of such statements any
Default or Unmatured Default and (ii) confirming the calculations set
forth in the officer’s certificate delivered simultaneously therewith pursuant
to clause (c) above;


 


23

















 


(e)           forthwith
upon the occurrence of any Default or Unmatured Default, a certificate of the
chief financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;


 


(f)            promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so mailed;


 


(g)           promptly
upon the filing thereof, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its
equivalent) and annual, quarterly or monthly reports which the Borrower shall
have filed with the Securities and Exchange Commission;


 


(h)           if
and when any member of the Controlled Group (i) receives notice of
complete or partial withdrawal liability or liabilities aggregating in excess
of $5,000,000 under Title IV of ERISA, a copy of such notice; or (ii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate or
appoint a trustee to administer any Plan or Plans having aggregate Unfunded
Vested Liabilities in excess of $5,000,000, a copy of such notice;


 


(i)            if
at any time the value of all “margin stock” (as defined in Regulation U) owned
by the Borrower and its Consolidated Subsidiaries exceeds (or would, following
application of the proceeds of an intended Loan, exceed) 25% of the value of
the total assets of the Borrower and its Consolidated Subsidiaries, in each
case as reasonably determined by the Borrower, prompt notice of such fact and,
promptly upon the request of any Lender, a duly completed statement of purpose
on Form U-1 for each Lender together with such other information or
documents as each Lender may be required to obtain under Regulation U in
connection with this Agreement; and


 


(j)            from
time to time such additional information regarding the financial position or
business of the Borrower or any Subsidiary as the Administrative Agent at the
request of any Lender may reasonably request.


 


6.2.         Maintenance
of Existence.  Except as permitted by
Section 6.12, the Borrower will, and will cause each Subsidiary to,
(a) preserve and maintain its corporate existence and all of its rights,
privileges and franchises necessary or desirable in the normal conduct of its
business and (b) conduct its business in a regular manner.


 


6.3.         Books
and Records; Maintenance of Properties; Inspections.


 


(a)           The
Borrower will keep, and will cause each Subsidiary to keep, its books and
records in accordance with sound business practices sufficient to allow the
Borrower to prepare its financial statements in accordance with GAAP.


 


(b)           The
Borrower will, and will cause each Subsidiary to, keep all of its properties
necessary, in the judgment of the Board of Directors of the Borrower, in its
business in good working order and condition, ordinary wear and tear excepted,
and will permit representatives of the Lenders to inspect such properties, and
to examine and make extracts from the books and records of the Borrower or any
Subsidiary, during normal business hours.


 


24

















 


6.4.         Compliance
with Laws and Contractual Obligations. 
The Borrower will, and will cause each Subsidiary to, comply with the
requirements of (a) all applicable laws, rules, regulations and orders of
any governmental body or regulatory agency having jurisdiction and (b) any
agreement or instrument binding upon such Person, a breach of which could have
a material adverse effect on the consolidated financial condition or the
business taken as a whole of the Borrower and its Subsidiaries, except where
contested in good faith and by proper proceedings.


 


6.5.         Notice
of Proceedings.  The Borrower will
promptly give notice in writing to each Lender of all litigation, arbitral
proceedings and regulatory proceedings affecting the Borrower or any Subsidiary
or the property of the Borrower or any Subsidiary, except litigation or
proceedings which, if adversely determined, could not materially and adversely
affect the consolidated financial condition or the business taken as a whole of
the Borrower and its Subsidiaries.


 


6.6.         Use
of Proceeds.  The Borrower will use
the credit facility established hereunder for commercial paper back-up and
other general company purposes of the Borrower and its Subsidiaries (including
non-hostile acquisitions to the extent permitted hereunder).  The Borrower will not use any part of the
proceeds of any Advance to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.  If requested by any Lender, the
Borrower will furnish to such Lender in connection with any Loan hereunder a
statement in conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U.


 


6.7.         Payment
of Taxes.  The Borrower will, and
will cause each Subsidiary to, pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
taxes, assessments, charges or levies (a) the payment of which is being
contested in good faith and by proper proceedings and against which it is
maintaining adequate reserves or (b) that do not at any time exceed
$1,000,000 in the aggregate.


 


6.8.         Insurance.  The Borrower will, and will cause each
Subsidiary to, maintain insurance with responsible companies in such amounts
and against such risks as is usually carried by owners of similar businesses
and properties in the same general areas in which the Borrower and its
Subsidiaries operate.


 


6.9.         Maximum
Consolidated Debt to Total Capital Ratio. 
The Borrower will not permit the ratio of Consolidated Debt to Total
Capital (expressed as a percentage) at any time to exceed 55%.


 


6.10.       Minimum
Consolidated Net Worth.  The Borrower
will not permit Consolidated Net Worth at any time to be less than
$1,250,000,000.


 


6.11.       Liens.  Neither the Borrower nor any Subsidiary will
create, assume or suffer to exist any Lien securing Debt on any asset now owned
or hereafter acquired by it, except for:


 


(a)           Liens
existing on the date hereof securing Debt outstanding on the date hereof;


 


25

















 


(b)           any
Lien existing on any asset of any entity at the time such entity becomes a
Subsidiary and not created in contemplation of such event;


 


(c)           any
Lien on any asset securing Debt incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such asset; provided
that such Lien attaches to such asset concurrently with or within 90 days after
the acquisition thereof;


 


(d)           any
Lien on any asset of any entity existing at the time such entity is merged into
or consolidated with the Borrower or a Subsidiary and not created in
contemplation of such event;


 


(e)           any
Lien existing on any asset prior to the acquisition thereof by the Borrower or
a Subsidiary and not created in contemplation of such acquisition;


 


(f)            any
Lien arising out of the refinancing, extension, renewal or refunding of any
Debt secured by any Lien permitted by any of the foregoing clauses of this
Section; provided that such Debt is not increased and is not secured by
any additional assets;


 


(g)           any
Lien arising pursuant to any order of attachment, distraint or similar legal
process arising in connection with court proceedings so long as the execution
or other enforcement thereof is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings; and


 


(h)           Liens
not otherwise permitted by the foregoing clauses of this Section securing
Debt in aggregate principal amount not to exceed 4% of the consolidated assets
of the Borrower and its Consolidated Subsidiaries at any time outstanding.


 


6.12.       Consolidations,
Mergers and Sales of Assets.  The
Borrower will not consolidate or merge with or into, or acquire substantially
all of the assets of, any other Person unless (a) in the case of a merger
or consolidation, the Borrower shall be the surviving entity, and (b) the
board of directors (or similar governing body) of such other Person shall have
approved such consolidation, merger or acquisition.  The Borrower will not permit the sale, lease
or other transfer to any other Person (other than to the Borrower and its
Subsidiaries and excluding sales, leases or other transfers in the ordinary
course of business) of assets of the Borrower or its Subsidiaries (valued at
net book value) exceeding 15% or more of the consolidated assets of the
Borrower and its Consolidated Subsidiaries as of the end of the immediately
preceding fiscal year of the Borrower.


 


6.13.       Transactions
with Affiliates.  The Borrower will
not, and will not permit any Subsidiary to, enter into or permit to exist any
transaction, arrangement or contract with any of its Affiliates (other than the
Borrower and its Subsidiaries) which is on terms which are less favorable than
are obtainable from a Person which is not one of its Affiliates.


 


6.14.       Business.  The Borrower will not, and will not permit
any Subsidiary to, enter into any material business other than the businesses
in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement and reasonable extensions thereof.


 


26
















 


6.15.                        Burdensome Agreements.  The Borrower will not, and will not permit
any Subsidiary to, enter into any agreement, instrument or other contractual
obligation (other than this Agreement) that (a) limits the ability of any
of its Subsidiaries to (i) pay dividends and other distributions to the
Borrower or otherwise transfer property to the Borrower; (ii) guarantee
any Debt of the Borrower or (iii) to create, incur, assume or suffer to
exist Liens in favor of the Administrative Agent, for the benefit of the
Lenders; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.


 


ARTICLE VII

DEFAULTS


 


The occurrence
of any one or more of the following events shall constitute a Default:


 


7.1.                              Representations and
Warranties.  Any representation or
warranty made or deemed made by or on behalf of the Borrower or any of its
Subsidiaries to the Lenders or the Administrative Agent under or in connection
with this Agreement, any Advance, or any certificate or information delivered
in connection with this Agreement shall be materially false on the date as of
which made.


 


7.2.                              Nonpayment.  Nonpayment of principal of any Loan when due
or nonpayment of interest upon any Loan or of any facility fee or other
obligation under this Agreement within five days after the same becomes due.


 


7.3.                              Certain Covenants.  The breach by the Borrower of any of the
terms or provisions of Section 6.1(e) or Sections 6.9
through 6.15 (inclusive)


 


7.4.                              Other Covenants.  The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this Article VII)
of any of the terms or provisions of this Agreement which is not remedied
within 30 days after written notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Lender.


 


7.5.                              Cross-Default.  Failure by the Borrower or any Subsidiary to (i) pay
any Debt (other than the Loans) when due or interest thereon and such failure
shall continue for more than any applicable period of grace with respect
thereto, or (ii) observe or perform any term, covenant or agreement
contained in any agreement or instrument (other than this Agreement) by which
it is bound evidencing or securing or relating to any Debt, if the effect
thereof is to permit (or, with the giving of notice or lapse of time or both,
would permit) the holder or holders thereof or of any obligations issued
thereunder or a trustee or trustees acting on behalf of such holder or holders
to cause acceleration of the maturity thereof or of any such obligation; provided
that the aggregate amount of Debt with respect to which any such event or
condition shall have occurred shall equal or exceed $10,000,000 (or the
equivalent thereof in currencies other than Dollars).


 


7.6.                              Voluntary Bankruptcy,
etc.  The Borrower or any Material
Subsidiary shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, or
shall consent to any such 


 


27

















 


relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing.


 


7.7.                              Involuntary
Bankruptcy, etc.  An involuntary case
or other proceeding shall be commenced against the Borrower or any Material
Subsidiary seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect.


 


7.8.                              Expropriation, etc.  Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of,
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control
of, during the twelve-month period ending with the month in which any such
action occurs, constitutes a Substantial Portion.


 


7.9.                              Judgements.  The Borrower or any of its Subsidiaries shall
fail within 30 days to pay, bond or otherwise discharge one or more (i) final
judgments or orders for the payment of money in excess of $10,000,000 (or the
equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary
final judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in
any such case, is/are not stayed on appeal or otherwise being appropriately
contested in good faith.


 


7.10.                        ERISA.  The Borrower or any other member of the
Controlled Group shall fail to pay when due any amount or amounts aggregating
in excess of $5,000,000 which it shall have become liable to pay to the PBGC or
to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000
shall be filed under Title IV of ERISA by any member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Plan or Plans having aggregate
Unfunded Vested Liabilities in excess of $5,000,000 or a proceeding shall be
instituted by a fiduciary of any Plan against any member of the Controlled
Group to enforce Section 515 of ERISA with respect to any amount or
amounts aggregating in excess of $5,000,000 and such proceeding shall not have
been dismissed within 30 days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Plan or Plans having aggregated Unfunded Vested Liabilities in excess of
$5,000,000 must be terminated.


 


7.11.                        Change in Control.  Any Change in Control shall occur.


 


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7.12.                        Invalidity of Agreement,
etc.  This Agreement shall fail to
remain in full force or effect or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of this Agreement, or the Borrower
shall deny that it has any further liability under this Agreement, or shall
give notice to such effect.


 


ARTICLE VIII

ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES


 


8.1.                              Acceleration.  If any Default described in Section 7.6
or 7.7 occurs with respect to the Borrower, the obligations of the
Lenders to make Loans hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Lender.  If any other Default occurs and is
continuing, the Administrative Agent may with the consent, or shall at the
request, of the Required Lenders, terminate or suspend the obligations of the
Lenders to make Loans hereunder and the obligation or declare the Obligations
to be due and payable, or both, whereupon such termination or suspension shall
become effective and/or the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives.


 


If, within 30
days after acceleration of the maturity of the Obligations or termination of
the obligations of the Lenders to make Loans hereunder as a result of any
Default (other than any Default described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent
shall, by notice to the Borrower, rescind and annul such acceleration and/or
termination.


 


8.2.                              Amendments.  Subject to the provisions of this Section 8.2,
the Required Lenders (or the Administrative Agent with the consent in writing
of the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provision to
this Agreement or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default hereunder; provided that no
such supplemental agreement shall:


 


(a)                                  without the consent
of each Lender affected thereby, (i) extend the final maturity of any Loan
or forgive all or any portion of the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon or any fee, or (ii) increase
the amount of the Commitment of any Lender hereunder; and


 


(b)                                 without the consent of
all of the Lenders, (i) reduce the percentage specified in the definition
of Required Lenders, (ii) permit the Borrower to assign its rights under
this Agreement or (iii) amend this Section 8.2.


 


No amendment
of any provision of this Agreement relating to the Administrative Agent shall
be effective without the written consent of the Administrative Agent.  The Administrative Agent may waive payment of
the fee required under Section 12.1(b)  without obtaining the
consent of any other party to this Agreement.


 


29

















 


8.3.                              Preservation of Rights.  No delay or omission of the Lenders or the
Administrative Agent to exercise any right under this Agreement shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of an Advance notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Advance shall not constitute any waiver or acquiescence.  Any single or partial exercise of any such
right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of this Agreement whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section 8.2, and
then only to the extent in such writing specifically set forth.  All remedies contained in this Agreement or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.


 


ARTICLE IX

GENERAL PROVISIONS


 


9.1.                              Survival of
Representations.  All representations
and warranties of the Borrower contained in this Agreement shall survive the
making of the Advances herein contemplated.


 


9.2.                              Governmental
Regulation.  Anything contained in
this Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.


 


9.3.                              Headings.  Section headings in this Agreement are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of this Agreement.


 


9.4.                              Entire Agreement.  This Agreement embodies the entire agreement
and understanding among the Borrower, the Administrative Agent and the Lenders
and supersedes all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter hereof
other than those contained in the fee letter described in Section 10.13,
which shall survive any termination of this Agreement.


 


9.5.                              Several Obligations;
Benefits of this Agreement.  The
respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to
which the Administrative Agent is authorized to act as such).  The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder.  This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns; provided that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.8 to the extent specifically set forth therein and shall have the
right to enforce such provisions on its own behalf and in its own name to the
same extent as if it were a party to this Agreement.


 


9.6.                              Expenses;
Indemnification.  (a)  The
Borrower shall reimburse the Administrative Agent and JPMorgan for any costs,
internal charges and out-of-pocket expenses (including attorneys’ fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent) paid or incurred by the Administrative
Agent or 


 


30

















 


JPMorgan in connection with the preparation, negotiation, execution,
delivery, syndication, distribution (including via the internet), review,
amendment, modification, and administration of this Agreement.  The Borrower also agrees to reimburse the
Administrative Agent, the Arrangers and the Lenders for any costs, internal
charges and out-of-pocket expenses (including attorneys’ fees and time charges
of attorneys for the Administrative Agent, the Arrangers and the Lenders, which
attorneys may be employees of the Administrative Agent, the Arrangers or the
Lenders) paid or incurred by the Administrative Agent, either Arranger or any
Lender in connection with the collection and enforcement of the this
Agreement.  Expenses being reimbursed by
the Borrower under this Section include costs and expenses incurred in
connection with the Reports described in the following sentence.  The Borrower acknowledges that from time to
time JPMCB may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain audit
reports (the “Reports”) pertaining to the Borrower’s assets for internal
use by JPMCB from information furnished to it by or on behalf of the Borrower,
after JPMCB has exercised its rights of inspection pursuant to this Agreement.


 


(b)                                 The Borrower hereby
further agrees to indemnify the Administrative Agent, each Arranger and each
Lender and their respective affiliates, and each of their Related Parties
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including all expenses of litigation or preparation therefor whether
or not the Administrative Agent, either Arranger, any Lender or any affiliate
is a party thereto) which any of them may pay or incur arising out of or
relating to this Agreement, the transactions contemplated hereby or the direct
or indirect application or proposed application of the proceeds of any Advance
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification.   The obligations of the
Borrower under this Section 9.6 shall survive the termination of
this Agreement.


 


9.7.                              Numbers of Documents.  All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.


 


9.8.                              Accounting.  Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP in a manner
consistent with that used in preparing the financial statements referred to in Section 5.4.  If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, and the Borrower, the Administrative
Agent or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided  that, until so amended, such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein
and the Borrower shall provide to the Administrative Agent and the Lenders
reconciliation statements showing the difference in such calculation, together
with the delivery of monthly, quarterly and annual financial statements
required hereunder.


 


9.9.                              Severability of
Provisions.  Any provision in this
Agreement that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be 


 


31

















 


inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or validity
of that provision in any other jurisdiction, and to this end the provisions of
this Agreement are declared to be severable.


 


9.10.                        Nonliability of Lenders.  The relationship between the Borrower on the
one hand and the Lenders and the Administrative Agent on the other hand shall
be solely that of borrower and lenders. 
None of Administrative Agent, either Arranger or any Lender shall have
any fiduciary responsibilities to the Borrower. 
None of the Administrative Agent, either Arranger or any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or
operations.  The Borrower agrees that
none of the Administrative Agent, either Arranger or any Lender shall have
liability to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by this Agreement, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a
court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is
sought.  None of the Administrative
Agent, either Arranger or any Lender shall have any liability with respect to,
and the Borrower hereby waives, releases and agrees not to sue for, any
special, indirect, consequential or punitive damages suffered by the Borrower
in connection with, arising out of, or in any way related to this Agreement or
the transactions contemplated thereby.


 


9.11.                        Confidentiality.  Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement
in confidence, except for disclosure (i) to its Affiliates and to other
Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to
any Person in connection with any legal proceeding to which such Lender is a
party, (vi) to such Lender’s direct or indirect contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
advisors to such counterparties, (vii) permitted by Section 12.2
and (viii) to rating agencies if requested or required by such agencies in
connection with a rating relating to the Advances hereunder.


 


9.12.                        Nonreliance.  Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U) for the
repayment of the Loans provided for herein.


 


9.13.                        Disclosure.  The Borrower and each Lender hereby
acknowledge and agree that JPMCB and/or its Affiliates from time to time may
hold investments in, make other loans to or have other relationships with the
Borrower and its Affiliates.


 


9.14.                        USA PATRIOT ACT NOTIFICATION.  Each Lender hereby notifies the Borrower that
pursuant to requirements of the USA Patriot Act, such Lender is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Bank to identify the Borrower in accordance with the USA
Patriot Act.


 


32

















 


ARTICLE X

THE ADMINISTRATIVE AGENT


 


10.1.                        Appointment; Nature of
Relationship.  JPMCB is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the “Administrative Agent”) hereunder, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein.  The Administrative Agent agrees
to act as such contractual representative upon the express conditions contained
in this Article X. 
Notwithstanding the use of the defined term “Administrative Agent,” it
is expressly understood and agreed that the Administrative Agent shall not have
any fiduciary responsibilities to any Lender by reason of this Agreement and
that the Administrative Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set forth
in this Agreement.  In its capacity as
the Lenders’ contractual representative, the Administrative Agent (i) does
not hereby assume any fiduciary duties to any of the Lenders, (ii) is a “representative”
of the Lenders within the meaning of the term “secured party” as defined in the
Illinois Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement.  Each of the
Lenders hereby agrees to assert no claim against the Administrative Agent on
any agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.


 


10.2.                        Powers.  The Administrative Agent shall have and may
exercise such powers under this Agreement as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto.  The
Administrative Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by this Agreement to be taken by the Administrative
Agent.


 


10.3.                        General Immunity.  Neither the Administrative Agent nor any of
its Related Parties shall be liable to the Borrower or any Lender for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
from the gross negligence or willful misconduct of such Person.


 


10.4.                        No Responsibility for Loans,
Recitals, etc.  Neither the
Administrative Agent nor any of its Related Parties shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (b) the performance or observance of any of the
covenants or agreements of any obligor under this Agreement, including any
agreement by an obligor to furnish information directly to each Lender; (c) the
satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Administrative Agent; (d) the
existence or possible existence of any Default or Unmatured Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of this
Agreement or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien
in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower’s or any
such guarantor’s respective Subsidiaries.


 


33

















 


10.5.                        Action on Instructions of
Lenders.  The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders. 
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders. 
The Administrative Agent shall be fully justified in failing or refusing
to take any action hereunder unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.


 


10.6.                        Employment of Agents and
Counsel.  The Administrative Agent
may execute any of its duties as Agent hereunder by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Lenders,
except as to money or securities received by it or its authorized agents, for
the default or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care.  The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and
all matters pertaining to the Administrative Agent’s duties hereunder.


 


10.7.                        Reliance on Documents;
Counsel.  The Administrative Agent
shall be entitled to rely upon any notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex, electronic mail message, statement, paper
or document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon
the opinion of counsel selected by the Administrative Agent, which counsel may
be employees of the Administrative Agent. 
For purposes of determining compliance with the conditions specified in Sections
4.1 and 4.2, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the applicable date specifying
its objection thereto.


 


10.8.                        Agent’s Reimbursement and
Indemnification.  The Lenders agree
to reimburse and indemnify the Administrative Agent ratably in accordance with
their Pro Rata Shares (i) for any amounts not reimbursed by the Borrower
for which the Administrative Agent is entitled to reimbursement by the Borrower
under this Agreement, (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of this
Agreement (including for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any other document delivered in
connection therewith or the transactions contemplated thereby (including for any
such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of
this Agreement 


 


34

















 


or of any such other documents; provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the
Administrative Agent and (ii) any indemnification required pursuant to Section 3.4(g) shall,
notwithstanding the provisions of this Section 10.8, be paid by the
relevant Lender in accordance with the provisions thereof.  The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this Agreement.


 


10.9.                        Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a “notice of
default”.  If the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.


 


10.10.                  Rights as a Lender.  If the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder with
respect to its Commitment and its Loans as any Lender and may exercise the same
as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, at any time when the Administrative Agent is a Lender, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity.  The Administrative Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person.  The Administrative
Agent, in its individual capacity, is not obligated to remain a Lender.


 


10.11.                  Lender Credit Decision.  Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, either
Arranger or any other Lender and based on the financial statements prepared by
the Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent,
either Arranger or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement. Except for any
notice, report, document or other information expressly required to be
furnished to the Lenders by the Administrative Agent or an Arranger hereunder,
neither the Administrative Agent nor either Arranger shall have any duty or
responsibility (either initially or on a continuing basis) to provide any
Lender with any notice, report, document, credit information or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Affiliates that may come into the possession of the
Administrative Agent or either Arranger (whether or not in their respective
capacity as Administrative Agent or an Arranger) or any of their Affiliates.


 


10.12.                  Successor Agent.  The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower, such
resignation to be effective upon the appointment of a successor Administrative
Agent or, if no successor Administrative Agent has been appointed, forty-five
days after the retiring Administrative Agent gives notice of its intention to
resign.  The Administrative Agent may be
removed at any time with or without 


 


35

















 


cause by written notice received by the Administrative Agent from the
Required Lenders, such removal to be effective on the date specified by the
Required Lenders.  Upon any such
resignation or removal, the Required Lenders shall have the right to appoint,
on behalf of the Borrower and the Lenders, a successor Administrative
Agent.  If no successor Administrative
Agent shall have been so appointed by the Required Lenders within thirty days
after the resigning Agent’s giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. 
Notwithstanding the previous sentence, the Administrative Agent may at
any time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Administrative Agent
hereunder.  If the Administrative Agent
has resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders.  No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment.  Any such successor Administrative Agent shall
be a commercial bank having capital and retained earnings of at least
$100,000,000.  Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning or removed Administrative Agent. 
Upon the effectiveness of the resignation or removal of the Administrative
Agent, the resigning or removed Administrative Agent shall be discharged from
its duties and obligations hereunder. 
After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article X shall continue
in effect for the benefit of such Administrative Agent in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder.  In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate
pursuant to this Section 10.12, then the term “Prime Rate” as used
in this Agreement shall mean the prime rate, base rate or other analogous rate
of the new Administrative Agent.


 


10.13.                  Agent and Arranger Fees.  The Borrower agrees to pay to the
Administrative Agent and the Arrangers, for their respective accounts, the fees
agreed to by the Borrower, the Administrative Agent and the Arrangers pursuant
to that certain letter agreement dated August 8, 2008, or as otherwise
agreed from time to time.


 


10.14.                  Delegation to Affiliates.  The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any
of its Affiliates.  Any such Affiliate
(and such Affiliate’s Related Parties) which performs duties in connection with
this Agreement shall be entitled to the same benefits of the indemnification,
waiver and other protective provisions to which the Administrative Agent is
entitled under Article IX and this Article X.


 


10.15.                  Other Agents.  No Lender identified in this Agreement as the
Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such.  Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender.  Each
Lender 


 


36

















 


hereby makes the same acknowledgments with respect to such Lenders as
it makes with respect to the Administrative Agent in Section 10.11.


 


ARTICLE XI

SETOFF; RATABLE PAYMENTS


 


11.1.                        Setoff.  In addition to, and without limitation of,
any rights of the Lenders under applicable law, if the Borrower becomes
insolvent, however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any time held or
owing by any Lender or any Affiliate of any Lender to or for the credit or
account of the Borrower may, with the prior consent of the Administrative
Agent, be offset and applied toward the payment of the Obligations owing to
such Lender, whether or not the Obligations, or any part thereof, shall then be
due.


 


11.2.                        Sharing of Payments.  (a)  If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, through the exercise
of any right of set-off or otherwise) on account of principal of or interest on
the Loans owed to it by the Borrower in excess of its Pro Rata Share of all
payments and other recoveries obtained by all Lenders on account of principal
of and interest on such Loans, then such Lender shall immediately (a) notify
the Administrative Agent and the other applicable Lenders of such fact and (b) purchase
such participations in the Loans of the other Lenders to the Borrower as shall
be necessary to cause such purchasing Lender to share the excess payment or
other recovery pro rata with such other Lenders in accordance with their Pro
Rata Shares; provided that if all or any portion of such excess payment
or other recovery is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other applicable Lender
shall repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender’s ratable share (according to the
proportion of (i) the amount of such paying Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered.


 


(b)                                 The
Borrower agrees that any Lender purchasing a participation from another Lender
pursuant to this Section 11.2 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 11.2.


 


ARTICLE XII

ASSIGNMENTS; PARTICIPATIONS; ETC.


 


12.1.                        Successors and Assigns.  (a)The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) 


 


37

















 


and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in clause (c) below) and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)                                 (i) Subject to
the conditions set forth in clause (ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:


 


(A)                              the
Borrower, provided that no consent of the Borrower shall be required for
an assignment to a Lender or an Affiliate of a Lender or, if a Default has
occurred and is continuing,  any other
assignee; and


 


(B)                                the
Administrative Agent.


 


(ii)                                  Assignments shall be
subject to the following additional conditions:


 


(A)                              except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitments
or Loans, the amount of the Commitments or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent of
the Borrower shall be required if a Default has occurred and is continuing;


 


(B)                                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, provided
that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of its other Commitment, if any (or Loans made thereunder);


 


(C)                                the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500;


 


(D)                               the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and


 


(E)                                 no
such assignment shall be made to the Borrower or any of the Borrower’s
Subsidiaries or other Affiliates.


 


38
















 


(iii)          Subject to acceptance and recording
thereof pursuant to clause (iv) below, from and after the effective
date specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.1, 3.3, 3.4, 9.6
and 9.10).  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this clause (b) 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 clause (c) of this Section.


 


(iv)  The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). 
The entries in the Register shall be conclusive, and the 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 the Borrower or any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(v)  Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in clause (b) of
this Section and any written consent to such assignment required by clause
(b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee
shall have failed to make any payment required to be made by it pursuant to Section 10.8
or 11.2(b), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this clause.


 


(c)(i)  Any Lender may, without the
consent of the Borrower, the Administrative Agent or the other Lenders, sell
participations to one or more banks or other entities (other than the Borrower
or any of the Borrower’s Subsidiaries or other Affiliates) (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to
it); provided that (A) such Lender’s obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the 


 


39

















 


Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to clause (b) that affects such Participant.  Subject to clause (c)(ii), the
Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.1, 3.3, 3.4, 9.6 and 9.10 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to clause
(b) of this Section.  To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.1 as though it were a Lender, provided
such Participant agrees to be subject to Section 11.2 as though it
were a Lender.


 


(ii)           A Participant shall
not be entitled to receive any greater payment under Section 3.1, 3.3
or 3.4 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 3.4
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.4(d) as
though it were a Lender.


 


(d)           Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.


 


12.2.        Dissemination
of Information.  The Borrower
authorizes each Lender to disclose to any assignee or Participant, or any other
Person acquiring an interest in this Agreement by operation of law (each a “Transferee”)
and any prospective Transferee any and all information in such Lender’s
possession concerning the creditworthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by Section 9.11
of this Agreement.


 


12.3.        Tax
Treatment.  If any interest in this
Agreement is transferred to any Transferee which is not incorporated under the
laws of the United States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of Section 3.4(d).


 


ARTICLE XIII


NOTICES


 


13.1.        Notices;
Effectiveness; Electronic Communication.


 


40

















 


(a)           Notices
Generally.  Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in clause (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows:


 


(i)            if to the Borrower,
at its address or telecopier number set forth on the signature page hereof;


 


(ii)           if to the
Administrative Agent, at its address or telecopier number set forth on the
signature page hereof; and


 


(iii)          if to a Lender, to
it at its address or telecopier number set forth in its Administrative
Questionnaire.


 


Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient).  Notices delivered through
electronic communications to the extent provided in clause (b) below,
shall be effective as provided in such clause (b).


 


(b)           Electronic
Communications.  Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and internet or intranet websites)
pursuant to procedures approved by the Administrative Agent or as otherwise
determined by the Administrative Agent; provided that the foregoing
shall not apply to notices to any Lender pursuant to Article II if
such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may,
in its respective discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by
it or as it otherwise determines; provided that such determination or
approval may be limited to particular notices or communications.


 


Unless the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other
communication is not given during the normal business hours of the recipient,
such notice or communication shall be deemed to have been given at the opening
of business on the next Business Day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.


 


(c)           Change
of Address, Etc.  Any party hereto
may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto.


 


41

















 


(d)           Duplicate
Notices Not Required.  If the
Borrower gives any notice or provides any information to a Person under either
of the Existing Credit Facilities and the Borrower would otherwise be
required to give a substantially identical notice or provide substantially
identical information to such Person under this Agreement, then the notice given
or information provided under such Existing Credit Facility shall be deemed to
satisfy any requirement for the giving of notice or the delivery of information
under this Agreement.


 


ARTICLE XIV


COUNTERPARTS; EFFECTIVENESS; ELECTRONIC
EXECUTION


 


14.1.        Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement shall become effective when the Administrative Agent has received
counterparts hereof signed by the Borrower and the Lenders.  Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or in a .pdf or similar file
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


14.2.        Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any assignment and
assumption agreement shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, or any other state laws based on the
Uniform Electronic Transactions Act.


 


ARTICLE XV


CHOICE OF LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL


 


15.1.        CHOICE OF LAW.  THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


15.2.        CONSENT TO JURISDICTION.  THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. 
ANY JUDICIAL PROCEEDING BY


 


42

















 


THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.


 


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


 


43

















 


IN WITNESS
WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed
this Agreement as of the date first above written.


 


 


	
   

  	
  BEMIS COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Melanie E.R. Miller

  
	
   

  	
  Name:

  	
   Melanie E.R. Miller

  
	
   

  	
  Title:

  	
    Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  One Neenah Center, 4th Floor

  
	
   

  	
  P.O. Box 669

  
	
   

  	
  Neenah, Wisconsin 54957-0669

  
	
   

  	
  FAX:  920/527-5040

  
					



 

















 


Commitments


 


	
  $62,500,000

  	
  JPMORGAN CHASE BANK, NATIONAL 

  ASSOCIATION,

  
	
   

  	
  Individually and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael B. Kelly

  
	
   

  	
  Name:

  	
  Michael B. Kelly

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office:

  
	
   

  	
   

  
	
   

  	
  JPMorgan Chase Bank, National Association

  
	
   

  	
  10 South Dearborn, Floor 07

  
	
   

  	
  Chicago, IL 60603-2003 United States

  
	
   

  	
  Mail Code   IL1-0010

  
	
   

  	
  Attention: 
  Edna Guerra

  
	
   

  	
  FAX: 
  312-385-7090

  
	
   

  	
  E-Mail: edna.guerra@jpmchase.com

  
				



 

















 


	
  $62,500,000

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
  Individually and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  Travagline

  	
   

  
	
   

  	
  Name:

  	
  James Travagline

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 
















 


PRICING SCHEDULE


 


	
  PRICING

  	
   

  	
  LEVEL I

  STATUS

  	
   

  	
  LEVEL II

  STATUS

  	
   

  	
  LEVEL III

  STATUS

  	
   

  	
  LEVEL IV

  STATUS

  	
   

  	
  LEVEL V

  STATUS

  	
   

  
	
  Applicable Margin

  	
   

  	
  Greater
  of .245%  or the Index 

  	
   

  	
  Greater
  of .290% or the Index

  	
   

  	
  Greater
  of .380% or the Index

  	
   

  	
  Greater
  of .470% or the Index

  	
   

  	
  Greater
  of .650% or the Index

  	
   

  
	
  Facility Fee Rate

  	
   

  	
  0.055%

  	
   

  	
  0.060%

  	
   

  	
  0.070%

  	
   

  	
  0.080%

  	
   

  	
  0.100%

  	
   

  



 


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


 


“Index” means the average of the Comp Spread for the Markit CDX.NA.IG Series 10
or any successor series (5 Year Period) for the preceding 30 days (or, if
fewer, the number of days for which the then current series is in effect) on
which the Securities Industry and Financial Markets Association declares the
U.S. fixed income market to be open.  If
the Index becomes unavailable, the Index will be set at the most recently
determined rate until the Borrower and the Lenders agree on an alternative method
for establishing the Applicable Margin.


 


“Level I Status” exists at any date if, on such date, the Borrower’s
Moody’s Rating is A2 or better and the Borrower’s S&P Rating is A or
better.


 


“Level II Status” exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower’s
Moody’s Rating is A3 or better and the Borrower’s S&P Rating is A- or
better.


 


“Level III Status” exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower’s Moody’s Rating is Baa1 or better and the Borrower’s S&P Rating
is BBB+ or better.


 


“Level IV Status” exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status  or Level III Status and (ii) the Borrower’s
Moody’s Rating is Baa2 or better and the Borrower’s S&P Rating is BBB or
better.


 


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


 


“Moody’s Rating” means, at any time, the rating issued by Moody’s and
then in effect with respect to the Borrower’s senior unsecured long-term debt
securities without third-party credit enhancement.


 


“S&P Rating” means, at any time, the rating issued by S&P and
then in effect with respect to the Borrower’s senior unsecured long-term debt
securities without third-party credit enhancement.


 

















 


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


 


The Applicable Margin and Facility Fee Rate shall be determined in
accordance with the foregoing table based on the Status as determined from the
then-current Moody’s and S&P Ratings. 
The credit rating in effect on any date for the purposes of this
Schedule is that in effect at the close of business on such date.  If at any time the Borrower has no Moody’s
Rating or no S&P Rating, Level V Status shall exist.


 


If the Borrower is split-rated and the ratings differential is one
notch, the higher of the two ratings will apply (e.g., A/A3 results in Level I
Status and A-/Baa1 results in Level II Status). 
If the Borrower is split-rated and the ratings differential is two or
more notches, the rating which is one notch above the lower rating shall be
used (e.g., A/Baa1 results in Level II Status and A/Baa3 results in Level III
Status).  If at any date, the Borrower’s
long-term unsecured debt is rated by neither S&P nor Moody’s, then Level V
Status shall apply.


 

















 


Schedule 5.5


 


Litigation and Contingent Liabilities


 


Dixie Toga S.A., acquired by the Company on January 5, 2005, is
involved in a tax dispute with the City of Săo Paulo,
Brazil.  The City imposes a tax on the rendering of printing
services.  The City has assessed this city services tax on the production
and sale of printed labels and packaging products.  Dixie Toga, along with
a number of other packaging companies, disagree and contend that the city
services tax is not applicable to its products and that the products are
subject only to the state value added tax (VAT).  Under Brazilian law,
state VAT and city services tax are mutually exclusive and the same transaction
can be subject to only one of those taxes.  Based on a ruling from the
State of Săo Paulo,
advice from legal counsel, and long standing business practice, Dixie Toga
appealed the city services tax and instead continued to collect and pay only
the state VAT.


 


The City of Săo Paulo disagreed and assessed Dixie
Toga the city services tax for the years 1991-1995.  The assessments for
those years are estimated to be approximately $68.8 million at the date the
Company acquired Dixie Toga, translated to U.S. dollars at the June 30,
2008 exchange rate.  Dixie Toga challenged the assessments and ultimately
litigated the issue in two annulment actions filed on November 24, 1998
and August 16, 1999 in the Lower Tax Court in the city of Săo Paulo.  A decision by the
Lower Tax Court in the city of Săo
Paulo in 2002 cancelled all of the assessments for the years 1991-1995. 
The City of Săo Paulo, the State of Săo Paulo, and Dixie Toga have
each appealed parts of the lower court decision.  In the event of an
adverse resolution, the estimated amounts for these years could be
substantially increased for additional interest, monetary adjustments and costs
from the date of acquisition.


 


The City has also asserted the applicability of the city services tax
for the subsequent years 1996-2001 and has issued assessments for those years
for Dixie Toga and for Itap Bemis Ltda., a Dixie Toga subsidiary.  The
assessments for those years were upheld at the administrative level and will be
challenged by the companies.  The assessments at the date of acquisition
for these years for tax and penalties (exclusive of interest and monetary
adjustments) are estimated to be approximately $10.4 million for Itap Bemis and
$33.4 million for Dixie Toga, translated to U.S. dollars at the June 30,
2008 exchange rate.  In the event of an adverse resolution, the estimated
amounts for these years could be increased by $35.4 million for Itap Bemis and
$102.1 million for Dixie Toga for interest, monetary adjustments and costs.


 


The 1996-2001 assessments for Dixie Toga are currently being challenged
in the courts.  The Company strongly disagrees with the City’s position
and intends to vigorously challenge any assessments by the City of Săo
Paulo.  The Company is unable at this time to predict the ultimate outcome
of the controversy and as such has not recorded any liability related to this
matter.  An adverse resolution could be material to the consolidated
results of operations and/or cash flows of the period in which the matter is
resolved.


 

















 


Schedule 5.11


 


The
Company has no parent.  The following
were subsidiaries of the Company as of December 31, 2007.


 


	
   

  	
   

  	
   

  	
   

  	
  Percentage of

  	
   

  
	
   

  	
   

  	
  Jurisdiction

  	
   

  	
  Voting Securities

  	
   

  
	
   

  	
   

  	
  of

  	
   

  	
  Owned By

  	
   

  
	
  Name

  	
   

  	
  Organization

  	
   

  	
  Immediate Parent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bemis Company, Inc.

  	
   

  	
  Missouri

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bemis
  Clysar, Inc.

  	
   

  	
  Minnesota

  	
   

  	
  100

  	
  %

  
	
  Bemis Czech Republic, s.r.o.

  	
   

  	
  Czech
  Republic

  	
   

  	
  100

  	
  %

  
	
  Bemis Deutschland Holdings GmbH

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Deutschland GmbH

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  Bemis Europe Holdings, S.A.

  	
   

  	
  Belgium

  	
   

  	
  100

  	
  %

  
	
  Bemis Monceau
  S.A.

  	
   

  	
  Belgium

  	
   

  	
  100

  	
  %

  
	
  Bemis Flexible
  Packaging de Mexico, S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
  Bemis Flexible
  Packaging Mexico Servicios, S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bemis France Holdings S.A.S.

  	
   

  	
  France

  	
   

  	
  100

  	
  %

  
	
  Bemis Le Trait
  S.A.S.

  	
   

  	
  France

  	
   

  	
  100

  	
  %

  
	
  Bemis Epernon
  S.A.S.

  	
   

  	
  France

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bemis Hungary Trading Limited Liability
  Company

  	
   

  	
  Hungary

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Danmark ApS

  	
   

  	
  Denmark

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Italia S.r.l.

  	
   

  	
  Italy

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Sverige A.B.

  	
   

  	
  Sweden

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging U.K. Ltd.

  	
   

  	
  United
  Kingdom

  	
   

  	
  100

  	
  %

  
	
  Bemis (Shanghai) Trading Co., Ltd.

  	
   

  	
  China

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bemis
  Valkeakoski Oy

  	
   

  	
  Finland

  	
   

  	
  100

  	
  %

  
	
  Bolsas Bemis
  S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
  Bolsas Bemis
  Servicios Mexico S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *

  	
  Curwood, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Curwood Packaging (Canada) Limited

  	
   

  	
  Canada

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Ireland Limited

  	
   

  	
  Ireland

  	
   

  	
  100

  	
  %

  
	
  Bemis Swansea Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  100

  	
  %

  
	
  Bemis Packaging Espana sl

  	
   

  	
  Spain

  	
   

  	
  100

  	
  %

  
	
  Itap Bemis
  Ltda.

  	
   

  	
  Brazil

  	
   

  	
  22

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Perfecseal, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Perfecseal
  Internacional de Puerto Rico, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Perfecseal International Ltd.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Perfecseal Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  100

  	
  %

  
	
  Bemis Asia Pacific Sdn Bhd

  	
   

  	
  Malaysia

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DEMF DT Holdings I, LLC

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Itap Bemis Ltda.

  	
   

  	
  Brazil

  	
   

  	
  23

  	
  %

  
	
  Hayco Liquidation Company

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Bemis U.K. Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  50

  	
  %

  



 

















 


Continued


 


	
   

  	
   

  	
   

  	
   

  	
  Percentage of

  	
   

  
	
   

  	
   

  	
  Jurisdiction

  	
   

  	
  Voting Securities

  	
   

  
	
   

  	
   

  	
  of

  	
   

  	
  Owned By

  	
   

  
	
  Name

  	
   

  	
  Organization

  	
   

  	
  Immediate Parent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MacKay, Inc.

  	
   

  	
  Kentucky

  	
   

  	
  100

  	
  %

  
	
  MACtac Mexico
  Servicios, S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  51

  	
  %

  
	
  Milprint, Inc.

  	
   

  	
  Wisconsin

  	
   

  	
  100

  	
  %

  
	
  Bemis Elsham Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  100

  	
  %

  
	
  Misbe Participacoes
  Ltda.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
  %

  
	
  SH
  Participacoes S.A.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
  %

  
	
  DT
  Participacoes S.A.

  	
   

  	
  Brazil

  	
   

  	
  76

  	
  %

  
	
  Dixie Toga S.A.

  	
   

  	
  Brazil

  	
   

  	
  92

  	
  %

  
	
  DT
  Participacoes S.A.

  	
   

  	
  Brazil

  	
   

  	
  24

  	
  %

  
	
  *

  	
  Dixie Toga S.A.

  	
   

  	
  Brazil

  	
   

  	
  8

  	
  %

  
	
  American
  Plast S.A.

  	
   

  	
  Argentina

  	
   

  	
  60

  	
  %

  
	
  Dixie Toga
  International Ltd.

  	
   

  	
  Cayman Islands

  	
   

  	
  100

  	
  %

  
	
  Impressora
  Paranaense S.A.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
  %

  
	
  Insit
  Embalagens Ltda.

  	
   

  	
  Brazil

  	
   

  	
  90

  	
  %

  
	
  Itap Bemis
  Ltda.

  	
   

  	
  Brazil

  	
   

  	
  55

  	
  %

  
	
  Itap Bemis
  Centro Oeste-Industria e Comércio de Embalagens Ltda. 

  	
   

  	
  Brazil 

  	
   

  	
  100 

  	
  % 

  
	
  Curwood Chile Ltda.

  	
   

  	
  Chile

  	
   

  	
  100

  	
  %

  
	
  Laminor S.A.

  	
   

  	
  Brazil

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *

  	
  Morgan Adhesives Company

  	
   

  	
  Ohio

  	
   

  	
  100

  	
  %

  
	
  Bemis Coordination Center S.A.

  	
   

  	
  Belgium

  	
   

  	
  33

  	
  %

  
	
  Bemis U.K. Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  50

  	
  %

  
	
  MACtac U.K. Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  100

  	
  %

  
	
  Electronic Printing Products, Inc.

  	
   

  	
  Ohio

  	
   

  	
  100

  	
  %

  
	
  MACtac Canada Limited/Limitee

  	
   

  	
  Canada

  	
   

  	
  100

  	
  %

  
	
  MACtac Europe S.A.

  	
   

  	
  Belgium

  	
   

  	
  11

  	
  %

  
	
  MACtac Europe S.A.

  	
   

  	
  Belgium

  	
   

  	
  89

  	
  %

  
	
  Bemis Coordination Center S.A.

  	
   

  	
  Belgium

  	
   

  	
  67

  	
  %

  
	
  Bemis Polska Sp. z o.o.

  	
   

  	
  Poland

  	
   

  	
  100

  	
  %

  
	
  MACtac Asia-Pacific Self-Adhesive Products
  Pte Ltd.

  	
   

  	
  Singapore

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MACtac Deutschland GmbH

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  MACtac France
  E.U.R.L.

  	
   

  	
  France

  	
   

  	
  100

  	
  %

  
	
  Multi-Fix N.V.

  	
   

  	
  Belgium

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MACtac Mexico,
  S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
  MACtac Mexico Servicios,
  S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  49

  	
  %

  
	
  MACtac
  Scandinavia A.B.

  	
   

  	
  Sweden

  	
   

  	
  100

  	
  %

  
	
  Morgan
  Adhesives America do Sul, Ltda.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pervel Industries, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
								



 






* Denotes Material Subsidiary


 
















 


EXHIBIT A


 


COMPLIANCE CERTIFICATE


 


To:                              The
Lenders that are parties to the Credit Agreement Described Below


 


This Compliance Certificate is furnished pursuant to the Credit
Agreement dated as of,                
(as amended, modified, renewed or extended from time to time, the “Credit
Agreement”) among Bemis Company, Inc. (the “Borrower”), the
lenders party thereto and JPMorgan Chase Bank, National Association, as
Administrative Agent for the Lenders. 
Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.


 


THE UNDERSIGNED HEREBY CERTIFIES THAT:


 


1.  I am the duly elected                  of
the Borrower;


 


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 event which constitutes a Default or Unmatured Default during or
at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth below;
and


 


4.  Schedule I attached hereto
sets forth financial data and computations evidencing the Borrower’s compliance
with certain covenants of the Credit Agreement, all of which data and
computations are true, complete and correct.


 


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            ,        .


 

















 


SCHEDULE I
TO COMPLIANCE CERTIFICATE


 


Compliance as
of
                  ,
         with


Provisions of      
and     of


the Agreement


 

















 


EXHIBIT B


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


                This
Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee.  The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.


 


                For an agreed consideration, the Assignor
hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations in its capacity as
a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including any
letters of credit and guarantees included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law
or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant
to clauses (i) and (ii) above being referred to herein collectively
as the “Assigned Interest”).  Such
sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an Affiliate of [identify Lender]]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower(s):

  	
   

  	
  Bemis Company, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative Agent:

  	
   

  	
  JPMorgan Chase Bank, National Association, as the administrative
  agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit Agreement:

  	
   

  	
  The Credit Agreement dated as of August 14, 2008 among Bemis
  Company, Inc., the Lenders parties thereto, JPMorgan Chase Bank,
  National Association, as Administrative Agent, and the other agents parties
  thereto

  



 

















 


6.                                       Assigned
Interest:


 


	
  Facility Assigned

  	
   

  	
  Aggregate Amount of

  Commitment/Loans for

  all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage Assigned of

  Commitment/Loans

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


Effective Date:  
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set
forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
   

  	
  ASSIGNOR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASSIGNEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


[Consented to and] Accepted:


 


	
  JPMORGAN
  CHASE BANK, NATIONAL ASSOCIATION,

  
	
  as Administrative Agent

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  
	
   

  
	
   

  
	
  [Consented to:]

  
	
   

  
	
  [NAME OF RELEVANT PARTY]

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  



 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Subject Matter

  	
   

  	
  Page

  



 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS
FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations
and Warranties.


 


1.1   Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of the Credit Agreement or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under the
Credit Agreement.


 


1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 6.1 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Assumption
and to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, and (ii) 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.


 


2.   Payments.    From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.


 


3.  General
Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.  This Assignment and Assumption
may be executed in any number of counterparts, which together shall constitute
one


 


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CONTENTS


 


	
  Clause

  	
   

  	
  Subject Matter

  	
   

  	
  Page

  



 


instrument.  Delivery of an
executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart
of this Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.


 


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