exv10w1



 






EXHIBIT 10.1





Execution Copy




 












CREDIT AGREEMENT




DATED AS OF December 18, 2007




among




CLARCOR INC.,




THE LENDERS PARTY HERETO




and




JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION

as Administrative Agent




and




BANK OF AMERICA, N.A.

as Syndication Agent




and




FIFTH THIRD BANK

and

U.S. BANK, NATIONAL ASSOCIATION,

as Documentation Agents




 






J. P. MORGAN SECURITIES INC.

as Sole Bookrunner and Sole Lead Arranger




 






 









 












TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2. THE CREDITS
	 	 	18	 
	2.1. Commitment
	 	 	18	 
	2.2. Determination of Dollar Amounts; Termination
	 	 	18	 
	2.2.1. Determination
	 	 	18	 
	2.2.2. Termination
	 	 	19	 
	2.3. Ratable Loans
	 	 	19	 
	2.4. Types of Advances
	 	 	19	 
	2.5. Swing Line Loans
	 	 	19	 
	2.5.1. Amount of Swing Line Loans
	 	 	19	 
	2.5.2. Borrowing Notice
	 	 	20	 
	2.5.3. Making of Swing Line Loans
	 	 	20	 
	2.5.4. Repayment of Swing Line Loans
	 	 	20	 
	2.6. Commitment Fee; Reduction and Increase in Aggregate Commitment
	 	 	21	 
	2.6.1. Commitment Fee
	 	 	21	 
	2.6.2. Reduction of Commitment
	 	 	21	 
	2.6.3. Increased Commitment
	 	 	21	 
	2.7. Minimum Amount of Each Advance
	 	 	23	 
	2.8. Optional Principal Payments
	 	 	23	 
	2.9. Method of Selecting Types and Interest Periods for New Advances
	 	 	23	 
	2.10. Conversion and Continuation of Outstanding Advances
	 	 	24	 
	2.11. Method of Borrowing
	 	 	25	 
	2.12. Changes in Interest Rate, etc
	 	 	25	 
	2.13. Rates Applicable After Default
	 	 	26	 
	2.14. Method of Payment
	 	 	26	 
	2.15. Currency Regulations
	 	 	26	 
	2.16. Noteless Agreement; Evidence of Indebtedness
	 	 	27	 
	2.16.1. Lender’s Records
	 	 	27	 
	2.16.2. Administrative Agent’s Records
	 	 	27	 
	2.16.3. Prima Facie Evidence
	 	 	27	 
	2.16.4. Notes
	 	 	27	 
	2.17. Telephonic Notices
	 	 	27	 
	2.18. Interest Payment Dates; Interest and Fee Basis
	 	 	28	 
	2.19. Facility LCs
	 	 	28	 
	2.19.1. Issuance
	 	 	28	 
	2.19.2. Participations
	 	 	28	 
	2.19.3. Notice
	 	 	29	 
	2.19.4. LC Fees
	 	 	29	 
	2.19.5. Administration; Reimbursement by Lenders
	 	 	29	 
	2.19.6. Reimbursement by Borrower
	 	 	30	 
	2.19.7. Obligations Absolute
	 	 	30	 
	2.19.8. Actions of LC Issuer
	 	 	31	 
	2.19.9. Indemnification
	 	 	31	 






i









 






	 	 	 	 	 
	2.19.10. Lenders’ Indemnification
	 	 	32	 
	2.19.11. Rights as a Lender
	 	 	32	 
	2.19.12. Cash Collateral
	 	 	32	 
	2.19.13. Transitional Letters of Credit
	 	 	32	 
	2.20. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions
	 	 	33	 
	2.21. Lending Installations
	 	 	33	 
	2.22. Non-Receipt of Funds by the Administrative Agent
	 	 	33	 
	2.23. Market Disruption
	 	 	33	 
	2.24. Judgment Currency
	 	 	34	 
	2.25. Replacement of Lender
	 	 	34	 
	2.26. Limitation of Interest
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 3. YIELD PROTECTION; TAXES
	 	 	36	 
	3.1. Yield Protection
	 	 	36	 
	3.2. Changes in Capital Adequacy Regulations
	 	 	37	 
	3.3. Availability of Types of Advances
	 	 	37	 
	3.4. Funding Indemnification
	 	 	37	 
	3.5. Taxes
	 	 	37	 
	3.5.1. No Offset for Taxes
	 	 	38	 
	3.5.2. Payment of Other Taxes
	 	 	38	 
	3.5.3. Tax Indemnity
	 	 	38	 
	3.5.4. Non-U.S. Lenders
	 	 	38	 
	3.5.5. Exception to Tax Indemnity
	 	 	39	 
	3.5.6. Additional Documentation
	 	 	39	 
	3.5.7. Administrative Agent Indemnification
	 	 	39	 
	3.6. Alternate Lending Installations; Lender Statements; Survival of Indemnity
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 4. CONDITIONS PRECEDENT
	 	 	40	 
	4.1. Initial Credit Extension
	 	 	40	 
	4.2. Each Credit Extension
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 5. REPRESENTATIONS AND WARRANTIES
	 	 	41	 
	5.1. Existence and Standing
	 	 	42	 
	5.2. Authorization and Validity
	 	 	42	 
	5.3. No Conflict; Government Consent
	 	 	42	 
	5.4. Financial Statements
	 	 	42	 
	5.5. Material Adverse Change
	 	 	43	 
	5.6. Taxes
	 	 	43	 
	5.7. Litigation and Contingent Obligations
	 	 	43	 
	5.8. Subsidiaries
	 	 	43	 
	5.9. ERISA
	 	 	43	 
	5.10. Accuracy of Information
	 	 	44	 
	5.11. [Reserved.]
	 	 	44	 
	5.12. Material Agreements
	 	 	44	 
	5.13. Compliance With Laws
	 	 	44	 






ii









 






	 	 	 	 	 
	5.14. Ownership of Properties
	 	 	44	 
	5.15. Prohibited Transactions
	 	 	44	 
	5.16. Environmental Matters
	 	 	44	 
	5.17. Investment Company Act
	 	 	45	 
	5.18. Post Retirement Benefits
	 	 	45	 
	5.19. Insurance
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 6. COVENANTS
	 	 	45	 
	6.1. Financial Reporting
	 	 	46	 
	6.2. Use of Proceeds
	 	 	47	 
	6.3. Notice of Default
	 	 	48	 
	6.4. Conduct of Business
	 	 	48	 
	6.5. Taxes
	 	 	48	 
	6.6. Insurance
	 	 	48	 
	6.7. Compliance with Laws
	 	 	48	 
	6.8. Maintenance of Properties
	 	 	48	 
	6.9. Inspection
	 	 	49	 
	6.10. Dividends
	 	 	49	 
	6.11. Secured Indebtedness
	 	 	49	 
	6.12. Merger
	 	 	49	 
	6.13. Sale of Assets
	 	 	50	 
	6.14. Investments and Acquisitions
	 	 	50	 
	6.15. Liens
	 	 	51	 
	6.16. Affiliates
	 	 	52	 
	6.17. Letters of Credit and Third-Party Bonds
	 	 	52	 
	6.18. Financial Covenants
	 	 	52	 
	6.18.1. Interest Coverage Ratio
	 	 	52	 
	6.18.2. Leverage Ratio
	 	 	53	 
	6.18.3. Adjustments to Financial Ratios
	 	 	53	 
	6.19. Existence; Subsidiary Guarantees
	 	 	53	 
	6.20. Change in Fiscal Year
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 7. DEFAULTS
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 8. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
	 	 	56	 
	8.1. Acceleration; Termination of Extensions of Facility LCs
	 	 	56	 
	8.2. Amendments
	 	 	57	 
	8.3. Preservation of Rights
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 9. GENERAL PROVISIONS
	 	 	58	 
	9.1. Survival of Representations
	 	 	58	 
	9.2. Governmental Regulation
	 	 	58	 
	9.3. Headings
	 	 	58	 
	9.4. Entire Agreement
	 	 	58	 
	9.5. Several Obligations; Benefits of this Agreement
	 	 	59	 
	9.6. Expenses; Indemnification
	 	 	59	 
	9.6.1. Expenses
	 	 	59	 






iii









 






	 	 	 	 	 
	9.6.2. Indemnification
	 	 	59	 
	9.7. Numbers of Documents
	 	 	60	 
	9.8. Accounting
	 	 	60	 
	9.9. Severability of Provisions
	 	 	60	 
	9.10. Nonliability of Lenders
	 	 	60	 
	9.11. Confidentiality
	 	 	61	 
	9.12. Nonreliance
	 	 	61	 
	9.13. Disclosure
	 	 	61	 
	9.14. USA Patriot Act
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 10. THE ADMINISTRATIVE AGENT
	 	 	61	 
	10.1. Appointment; Nature of Relationship
	 	 	61	 
	10.2. Powers
	 	 	62	 
	10.3. General Immunity
	 	 	62	 
	10.4. No Responsibility for Loans, Recitals, etc
	 	 	62	 
	10.5. Action on Instructions of Lenders
	 	 	63	 
	10.6. Employment of Agents and Counsel
	 	 	63	 
	10.7. Reliance on Documents; Counsel
	 	 	63	 
	10.8. Administrative Agent’s Reimbursement and Indemnification
	 	 	63	 
	10.9. Notice of Default
	 	 	64	 
	10.10. Rights as a Lender
	 	 	64	 
	10.11. Lender Credit Decision
	 	 	64	 
	10.12. Successor Administrative Agent
	 	 	64	 
	10.13. Administrative Agent and Arranger Fees
	 	 	65	 
	10.14. Delegation to Affiliates
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 11. SETOFF; RATABLE PAYMENTS
	 	 	65	 
	11.1. Setoff
	 	 	65	 
	11.2. Ratable Payments
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 12. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
	 	 	66	 
	12.1. Successors and Assigns
	 	 	66	 
	12.2. Participations
	 	 	66	 
	12.2.1. Permitted Participants; Effect
	 	 	66	 
	12.2.2. Voting Rights
	 	 	67	 
	12.2.3. Benefit of Certain Provisions
	 	 	67	 
	12.3. Assignments
	 	 	67	 
	12.3.1. Permitted Assignments
	 	 	67	 
	12.3.2. Consents
	 	 	68	 
	12.3.3. Effect; Effective Date
	 	 	68	 
	12.3.4. Register
	 	 	68	 
	12.4. Dissemination of Information
	 	 	69	 
	12.5. Tax Treatment
	 	 	69	 
	12.6. Prohibition Regarding Certain Transferees
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 13. NOTICES
	 	 	69	 
	13.1. Notices
	 	 	69	 






iv









 






	 	 	 	 	 
	13.2. Change of Address
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 14. COUNTERPARTS
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 15. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
	 	 	70	 
	15.1. CHOICE OF LAW
	 	 	70	 
	15.2. CONSENT TO JURISDICTION
	 	 	70	 
	15.3. WAIVER OF JURY TRIAL
	 	 	70	 






v









 






CREDIT AGREEMENT




     This Agreement, dated as of December 18, 2007 CLARCOR Inc., the Lenders and JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION as LC Issuer and as Administrative Agent. The parties hereto agree as
follows:



ARTICLE 1.

DEFINITIONS




     As used in this Agreement:



     “Acquisition” means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a contingency) or a majority
(by percentage or voting power) of the outstanding ownership interests of a partnership or limited
liability company.



     “Adjusted EBITDA” means, as of any date of determination and without duplication: (i)
Consolidated EBITDA for the four (4) fiscal quarter period ending on the last day of the most
recent fiscal quarter ending on or preceding such date of determination for which the
Administrative Agent has received all of the financial statements for such fiscal quarter and the
compliance certificate required to be delivered to the Administrative Agent, plus (ii) Pro
Forma EBITDA for Acquisitions consummated after the date hereof. Effective upon the consummation
of an Acquisition, Adjusted EBITDA shall be adjusted to include Pro Forma EBITDA for the applicable
target entity that has been acquired. Effective upon the consummation of any sale, lease or other
disposition pursuant to Section 6.13, Adjusted EBITDA shall be adjusted by the Borrower on
a pro forma basis as of the last day of the fiscal quarter for which the Borrower has delivered the
financial statements required to be delivered pursuant to Section 6.1 to remove the impact
(positive or negative) of the assets which are the subject of such sale, lease or other disposition
pursuant to Section 6.13 have on Adjusted EBITDA.



     “Administrative Agent” means JPMorgan Chase Bank, National Association (including its
branches and affiliates), in its capacity as contractual representative of the Lenders pursuant to
Article 10, and not in its individual capacity as a Lender, and any successor
Administrative Agent appointed pursuant to Article 10.



     “Advance” means a borrowing hereunder, (i) made by some or all of 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 Eurocurrency Loans in the same Agreed Currency and for the same
Interest Period. The term “Advance” shall include Swing Line Loans unless otherwise
expressly provided.



 









 





     “Affected Lender” is defined in Section 2.25.



     “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 the Lenders, as
reduced or increased from time to time pursuant to the terms hereof. The Aggregate Commitment as
of the date of this Agreement is $250,000,000.



     “Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.



     “Agreed Currencies” means (i) Dollars, (ii) so long as such currencies remain Eligible
Currencies, British Pounds Sterling and Euro, and (iii) any other Eligible Currency which the
Borrower requests the Administrative Agent to include as an Agreed Currency hereunder and which is
acceptable to all of the Lenders. For the purposes of this definition, each of the specific
currencies referred to in clause (ii), above, shall mean and be deemed to refer to the lawful
currency of the jurisdiction referred to in connection with such currency, e.g., “Australian
Dollars” means the lawful currency of Australia.



     “Agreement” means this credit agreement, as it may be amended or modified and in
effect from time to time.



     “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 Fee Rate” means, at any time, the percentage rate per annum at which
Commitment Fees are accruing on the unused portion of the Aggregate Commitment at such time as set
forth in the Pricing Schedule.



     “Applicable Margin” means, with respect to Advances of any Type at any time, the
percentage rate per annum which is applicable at such time with respect to Advances of such Type as
set forth in the Pricing Schedule.



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



     “Approximate Equivalent Amount” of any currency with respect to any amount of Dollars
shall mean the Equivalent Amount of such currency with respect to such amount of Dollars on or as
of such date, rounded up to the smallest unit of such currency commonly in circulation as
determined by the Administrative Agent from time to time.



2









 





     “Arranger” means J.P. Morgan Securities Inc., and its successors, in its capacity as
Sole Lead Arranger and Sole Bookrunner.



     “Article” means an article of this Agreement unless another document is specifically
referenced.



     “Assuming Lender” is defined in Section 2.6.3.



     “Authorized Officer” means any of Norman E. Johnson, Chairman, President and Chief
Executive Officer, Bruce A. Klein, Vice President – Finance and Chief Financial Officer, David
Lindsay, Vice President-Administration of the Borrower or Richard M. Wolfson, Vice President –
General Counsel and Secretary, acting singly.



     “Available Aggregate Commitment” means, at any time, the Aggregate Commitment then in
effect minus the Aggregate Outstanding Credit Exposure at such time.



     “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.



     “Borrower” means CLARCOR Inc., a Delaware corporation, and its successors and assigns.



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



     “Borrowing Notice” is defined in Section 2.9.



     “Business Day” means (i) with respect to any borrowing, payment or rate selection of
Eurocurrency Advances, 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, interbank wire transfers can be made on the Fedwire system and dealings in Dollars and
other Agreed Currencies are carried on in the London interbank market (and, if the Advances which
are the subject of such borrowing, payment or rate selection are denominated in Euros, a day upon
which such clearing system as is determined by the Administrative Agent to be suitable for clearing
or settlement of the Euro is open for business), and (ii) for all other purposes, a day (other than
a Saturday or Sunday) on which banks generally are open in Chicago for the conduct of substantially
all of their commercial lending activities and interbank wire transfers can be made on the Fedwire
system.



     “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
consistently applied.



     “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 consistently applied.



     “Cash Equivalent Investments” means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or



3









 







better by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of
business, (iv) certificates of deposit issued by and time deposits with commercial banks (whether
domestic or foreign) having capital and surplus in excess of $200,000,000, (v) investments in
tax-exempt bonds rated Aa by Moody’s or AA by S&P (or having comparable short-term ratings)
maturing (or subject to tender at the option of the holder) within 181 days and (vi) money market
funds offered by any of the Lenders so long as such funds are rated AAA by Moody’s or Aaa by S&P;
provided in each case that the same provides for payment of both principal and interest (and not
principal alone or interest alone) and is not subject to any contingency regarding the payment of
principal or interest.



     “Change” is defined in Section 3.2.



     “Change in Control” means:



          (a) The acquisition (other than from the Borrower) by any person, entity, or “group”, within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then
outstanding shares of Common Stock or the combined voting power of the Borrower’s then outstanding
voting securities entitled to vote generally in the election of directors; provided, however, no
Change in Control shall be deemed to have occurred for any acquisition by any Person with respect
to which, following such acquisition, more than 60% of the combined voting power of the then
outstanding voting securities of such Person entitled to vote generally in the election of
directors (or the equivalent) is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners, respectively, of
the then outstanding shares of Common Stock or the combined voting power of the Borrower’s then
outstanding voting securities immediately prior to such acquisition in substantially the same
proportions as their ownership, immediately prior to such acquisition, of the Borrower’s then
outstanding Common Stock and then outstanding voting securities, as the case may be; or




          (b) Individuals who, as of the date hereof, constitute the board of directors of the Borrower
(as of the date hereof “Incumbent Board”) cease for any reason to constitute at least a
majority of such board, provided that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Borrower’s shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in connection with an actual
or threatened election contest relating to the election of the directors of the Borrower) shall be,
for purposes of this Credit Agreement, considered as though such person were a member of the
Incumbent Board; or




          (c) Consummation of a reorganization, merger or consolidation, in each case, with respect to
which persons who were the stockholders of the Borrower immediately prior to the reorganization,
merger or consolidation do not, immediately thereafter, own more than 60% of the combined voting
power entitled to vote generally in the election of directors (or the equivalent) of the
reorganized, merged or consolidated company’s then outstanding voting securities, or shareholder
approval of a liquidation of dissolution of the Borrower or of the sale of all or substantially all
of the assets of the Borrower.




4









 








     “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.



     “Commitment” means, for each Lender, the obligation of such Lender to make Revolving
Loans to, and participate in Facility LCs issued upon the application of, the Borrower in an
aggregate amount not exceeding the amount set forth opposite its signature below, as it may be
modified as a result of any assignment that has become effective pursuant to Section 12.3.2
or as otherwise established or modified from time to time pursuant to the terms hereof.



     “Commitment Fee” is defined in Section 2.6.1.



     “Commitment Increase” is defined in Section 2.6.3.



     “Commitment Increase Date” is defined in Section 2.6.3.



     “Common Stock” means the common stock, par value $1 per share, of the Borrower.



     “Computation Date” is defined in Section 2.2.



     “Consolidated EBIT” means, with reference to any period, Consolidated Net Income plus,
to the extent deducted from revenues in determined Consolidated Net Income, (i) Consolidated Net
Interest Expense, (ii) provision for income taxes and (iii) extraordinary losses incurred other
than in the ordinary course of business, minus, to the extent included in Consolidated Net Income,
extraordinary gains realized other than in the ordinary course of business, all calculated for the
Borrower and its Subsidiaries on a consolidated basis for such period in accordance with GAAP.



     “Consolidated EBITDA” means, with reference to any period, Consolidated Net Income
plus, to the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Net Interest Expense, (ii) provision for income taxes, (iii) depreciation, (iv) amortization and
(v) extraordinary losses incurred other than in the ordinary course of business, minus, to the
extent included in Consolidated Net Income, extraordinary gains realized other than in the ordinary
course of business, all calculated for the Borrower and its Subsidiaries on a consolidated basis
for such period in accordance with GAAP.



     “Consolidated Funded Indebtedness” means at any time the aggregate dollar amount of
Consolidated Indebtedness which has actually been funded and is outstanding at such time, whether
or not such amount is due or payable at such time.



     “Consolidated Indebtedness” means at any time the aggregate dollar amount of
Indebtedness of the Borrower and its consolidated Subsidiaries outstanding at such time, calculated
on a consolidated basis as of such time in accordance with GAAP.



     “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated on a consolidated basis for such period in
accordance with GAAP.



5









 





     “Consolidated Net Interest Expense” means, with reference to any period, the interest
expense, net of interest income, of the Borrower and its Subsidiaries calculated on a consolidated
basis for such period in accordance with GAAP.



     “Consolidated Net Worth” means at any time the stockholders’ equity of the Borrower
and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP.



     “Contingent Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating agreement, take or pay
contract or the obligations of any such Person as general partner of a partnership with respect to
the liabilities of the partnership.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.



     “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 2.10.



     “Country Risk Event” means:



     (i) any law, action or failure to act by any Governmental Authority in the Borrower’s or
Letter of Credit beneficiary’s country which has the effect of:




     (a) changing the obligations under the relevant Letter of Credit, the Credit Agreement
or any of the other Loan Documents as originally agreed or otherwise creating any additional
liability, cost or expense to the LC Issuer, the Lenders or the Administrative Agent,




     (b) changing the ownership or control by the Borrower or Letter of Credit beneficiary
of its business, or




     (c) preventing or restricting the conversion into or transfer of the applicable Agreed
Currency;



     (ii) force majeure; or



     (iii) any similar event



6









 





     which, in relation to (i), (ii) and (iii), directly or indirectly prevents or materially
restricts the payment or transfer of any amounts owing under the relevant Letter of Credit in the
applicable Agreed Currency into an account designated by the Administrative Agent or the LC Issuer
and freely available to the Administrative Agent or the LC Issuer.



     “Credit Extension” means the making of an Advance or the issuance of a Facility LC
hereunder.



     “Credit Extension Date” means the Borrowing Date for an Advance or the issuance date
for a Facility LC.



     “Default” means an event described in Article 7, provided that any requirement
for the giving of notice (and, if applicable, an opportunity to cure), the lapse of time or both
has been satisfied.



     “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in Dollars of such amount if such currency is
any currency other than Dollars, calculated on the basis of the arithmetical mean of the buy and
sell spot rates of exchange of the Administrative Agent for such currency on the London market at
11:00 a.m., London time, on or as of the most recent Computation Date provided for in Section
2.2.



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



     “Domestic Subsidiary” means any Subsidiary organized under the laws of the United
States of America, any State thereof or the District of Columbia.



     “Eligible Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the London interbank market, (iv) which is convertible into Dollars in the international interbank
market and (v) as to which an Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, (x) currency control or other
exchange regulations are imposed in the country in which such currency is issued with the result
that different types of such currency are introduced, (y) such currency is, in the reasonable
determination of the Administrative Agent, no longer readily available or freely traded or (z) in
the reasonable determination of the Administrative Agent, an Equivalent Amount of such currency is
not readily calculable, the Administrative Agent shall promptly notify the Lenders and the
Borrower, and such currency shall no longer be an Agreed Currency until such time as all of the
Lenders agree to reinstate such currency as an Agreed Currency and promptly, but in any event
within five Business Days of receipt of such notice from the Administrative Agent, the Borrower
shall repay all Loans in such affected currency or convert such Loans into Loans in Dollars or
another Agreed Currency, subject to the other terms set forth in Article 2.



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, or to the management, release or threatened release of any Hazardous
Material.



7









 





     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



     “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for
such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be
determined.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any rule or regulation issued thereunder.



     “Euro” and/or “EUR” means the euro referred to in Council Regulation (EC) No.
1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if different, the then
lawful currency of the member states of the European Union that participate in the third stage of
Economic and Monetary Union.



     “Eurocurrency” means any Agreed Currency.



     “Eurocurrency Advance” means an Advance which, except as otherwise provided in
Section 2.13, bears interest at the applicable Eurocurrency Rate.



     “Eurocurrency Payment Office” of the Administrative Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the Administrative Agent
specified as the “Eurocurrency Payment Office” for such currency in Schedule 3 hereto or
such other office, branch, affiliate or correspondent bank of the Administrative Agent as it may
from time to time specify to the Borrower and each Lender as its Eurocurrency Payment Office.



     “Eurocurrency Rate” means, with respect to a Eurocurrency Advance for the relevant
Interest Period, the sum of (i) the product of (a) the Eurocurrency Reference Rate applicable to
such Interest Period, multiplied by (b) the Statutory Reserve Rate, plus (ii) in the case of Loans
by a Lender from its office in the United Kingdom, the Mandatory Cost, plus (iii) the Applicable
Margin.



     “Eurocurrency Reference Rate” means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the applicable British Bankers’ Association LIBOR rate for deposits in
the applicable Agreed Currency as reported by any generally recognized financial information



8









 







service as of 11:00 a.m. (London time) two Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on) the first day of such Interest Period, and having a maturity
equal to such Interest Period.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time.



     “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.



     “Exhibit” refers to an exhibit to this Agreement, unless another document is
specifically referenced.



     “Existing Credit Agreement” means the Credit Agreement dated as of April 8, 2003 among
the Borrower, the banks party thereto, and Bank One, NA as Administrative Agent.



     “Facility LC Application” is defined in Section 2.19.3.



     “Facility LC” is defined in Section 2.19.1.



     “Facility LC Collateral Account” is defined in Section 2.19.12.



     “Facility Termination Date” means December 18, 2012.



     “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 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” means, for any day, a rate per annum equal to (i) the Alternate Base
Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the Alternate
Base Rate changes.



     “Floating Rate Advance” means an Advance which, except as otherwise provided in
Section 2.13, bears interest at the Floating Rate.



     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



9









 





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



     “GAAP” means generally accepted accounting principles in the United States of America
as in effect from time to time, together with any other accounting principles as are approved by or
acceptable to the SEC.



     “Governmental Authority” means the government of the United States of America, or of
any other nation, or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



     “Guarantor” means each Domestic Subsidiary of the Borrower that executes and delivers
to the Administrative Agent a Subsidiary Guarantee Agreement in the form of Exhibit F
hereto along with the accompanying closing documents required by Sections 4.1(a) through
4.1(d) hereof.



     “Guaranty” means, with respect to any Person, any direct or indirect liability,
contingent or otherwise, of such Person with respect to any Indebtedness, lease, dividend or other
obligation of another, including, without limitation, any such obligation directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business)
or discounted or sold with recourse by such Person, or in respect of which such Person is otherwise
directly or indirectly liable, including, without limitation, any such obligation in effect
guaranteed by such Person through any agreement (contingent or otherwise) to purchase, repurchase
or otherwise acquire such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain the solvency or any balance sheet or other financial
condition of the obligor of such obligation, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such obligation will be
protected against loss in respect thereof. The amount of any Guaranty shall be equal to the
maximum aggregate amount of the obligation guaranteed or such lesser amount to which the maximum
aggregate potential liability of the guarantor shall have been specifically limited.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
other hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature, regulated pursuant
to any Environmental Law.



     “Highest Lawful Rate” means the maximum rate of interest which the Lenders are allowed
to contract for, charge, take, reserve or receive under applicable law after taking into account,
to the extent required by applicable law, any and all relevant payments or charges hereunder.



10









 





     “Increasing Lender” is defined in Section 2.6.3.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following:




     (i) all obligations of such Person for borrowed money;




     (ii) all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;




     (iii) all obligations of such Person to pay the deferred purchase price of property or
services (other than accounts payable and accrued expenses in the ordinary course of
business);




     (iv) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (v) Capitalized Lease Obligations; and




     (vi) all Guaranty obligations and Contingent Obligations of such Person in respect of
any of the foregoing.



     “Interest Period” means, with respect to a Eurocurrency Advance, a period of one, two,
three, six, nine or twelve months commencing on a Business Day selected by the Borrower pursuant to
this Agreement. Such Interest Period shall end on the day which corresponds numerically to such
date one, two, three, six, nine or twelve months thereafter, provided, however, that if there is no
such numerically corresponding day in such next, second, third, sixth, ninth or twelfth succeeding
month, such Interest Period shall end on the last Business Day of such next, second, third, sixth,
ninth or twelfth succeeding month. If an Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.



     “Investment” of a Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business), extension of
credit (other than accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; any deposit
accounts and certificate of deposit owned by such Person; and structured notes, derivative
financial instruments and other similar instruments or contracts owned by such Person.



     “LC Fee” is defined in Section 2.19.4.



     “LC Issuer” means JPMorgan Chase Bank, National Association, in its capacity as issuer
of Facility LCs hereunder, and any other Lender who issues a Facility LC hereunder upon the



11









 







written request of the Borrower with the approval of the Administrative Agent (such approval
not to be withheld or delayed unreasonably).



     “LC Obligations” means, at any time, the sum, without duplication, of (i) the
aggregate undrawn stated amount available under all Facility LCs outstanding at such time plus (ii)
the aggregate unpaid amount at such time of all Reimbursement Obligations.



     “LC Payment Date” is defined in Section 2.19.5.



     “Lenders” means the lending institutions listed on the signature pages of this
Agreement and their respective branches, affiliates, successors and assigns. Unless otherwise
specified, the term “Lenders” includes JPMorgan Chase Bank, National Association in its capacity as
Swing Line Lender.



     “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 with respect
to each Agreed Currency listed on Schedule 4 or otherwise selected by such Lender or the
Administrative Agent pursuant to Section 2.21.



     “Letter of Credit” of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an account party or for
which such Person is in any way liable.



     “Leverage Ratio” means the ratio of Consolidated Funded Indebtedness to Adjusted
EBITDA.



     “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or
similar preferential arrangement of any kind or nature whatsoever (including, without limitation,
the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).



     “Loan” means a Revolving Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, the Facility LC Applications, the Subsidiary
Guarantee Agreements and any Notes issued pursuant to Section 2.16.



     “Mandatory Cost” is described in Schedule 5.



     “Material Adverse Effect” means a material adverse effect on (i) the business,
Property or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a
whole, or (ii) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent, the LC Issuer or the Lenders thereunder.



     “Material Indebtedness” means Indebtedness in an outstanding principal amount of
$20,000,000 or more in the aggregate (or the equivalent thereof in any currency other than U.S.
dollars).



12









 





     “Material Indebtedness Agreement” means any agreement under which any Material
Indebtedness was created or is governed or which provides for the incurrence of Indebtedness in an
amount which would constitute Material Indebtedness (whether or not an amount of Indebtedness
constituting Material Indebtedness is outstanding thereunder).



     “Material Plan” is defined in Section 7.11.



     “Modify” and “Modification” are defined in Section 2.19.1.



     “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.



     “National Currency Unit” means the unit of currency (other than a Euro unit) of each
member state of the European Union that participates in the third stage of Economic and Monetary
Union.



     “New Money Credit Event” means with respect to the LC Issuer, any increase (directly
or indirectly) in the LC Issuer’s exposure (whether by way of additional credit or banking
facilities or otherwise, including as part of a restructuring) to the Borrower or any Governmental
Authority in the Borrower’s or any applicable Letter of Credit beneficiary’s country occurring by
reason of (i) any law, action or requirement of any Governmental Authority in the Borrower’s or
such Letter of Credit beneficiary’s country, or (ii) any request of a Governmental Authority in
respect of external indebtedness of borrowers in the Borrower’s or such Letter of Credit
beneficiary’s country applicable to banks generally which conduct business with such borrowers, or
(iii) any agreement in relation to clause (i) or (ii), in each case to the extent calculated by
reference to the aggregate Obligations outstanding prior to such increase.



     “Non-U.S. Lender” is defined in Section 3.5.4.



     “Note” is defined in Section 2.16.



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



     “Original Currency” is defined in Section 2.14.2.



     “Other Taxes” is defined in Section 3.5.2.



     “Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Revolving Loans outstanding at such time, plus (ii) an amount
equal to its Pro Rata Share of the LC Obligations at such time, plus (iii) an amount equal to its
Pro Rata Share of the aggregate principal amount of Swing Line Loans outstanding at such time.



13









 





     “Participants” is defined in Section 12.2.1.



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



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



     “Permitted Industrial Revenue Bond Liabilities” means liabilities (including, without
limitation, reimbursement obligations on letters of credit) of the Borrower and its Subsidiaries
aggregating not more than $40,000,000 at any one time outstanding in respect of industrial revenue
bond issues constituting long-term Indebtedness which finance additions to or improvements in
plant, property or equipment of the Borrower or any Subsidiary secured (if at all) by no Property
of the Borrower or any Subsidiary other than the fixed assets so acquired or improved, replacements
thereto and intangible property related specifically 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 a defined benefit pension plan within the meaning of Title IV of ERISA 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 a rate per annum equal to the prime rate of interest announced from
time to time by JPMorgan Chase Bank, National Association or its parent (which is not necessarily
the lowest rate charged by JPMorgan Chase Bank, National Association or its parent to any customer)
changing when and as said prime rate changes.



     “Pro Forma EBITDA” means, with respect to any Acquisition, the amount of the Target
EBITDA of such Acquisition for the most recent trailing four (4) fiscal quarter period ending as of
the last day of the fiscal quarter preceding the closing of the Acquisition for which financial
statements are available, adjusted as provided herein. Such amount shall be determined by the
Borrower and shall be subject to the consent of the Administrative Agent (such consent not to be
unreasonably withheld), based upon and derived from financial information delivered to the
Administrative Agent in connection with the consummation of such Acquisition. In each instance,
the historical Target EBITDA of such target shall be adjusted by: (x) verifiable cost savings
attributable to operating efficiencies reasonably expected to be realized by such Person or assets
so acquired as operated and controlled by the Borrower or by a Subsidiary of the Borrower (to the
extent not already added back into the calculation of Target EBITDA) and (y) an amount which gives
effect to the prorating of any year end adjustments made to the most recent annual financial
statements of such Person or assets and which should have been accrued during such year in
accordance with GAAP, all of which shall be reasonably determined by the Borrower, and must be
consented to by the Administrative Agent (which consent will not be unreasonably withheld). After
the closing of such Acquisition and unless otherwise agreed by the Administrative Agent and the
Borrower, Pro Forma EBITDA with respect thereto shall be multiplied by a fraction the numerator of
which is three hundred sixty five (365) less the number of days after the closing of the
Acquisition included in any period for which financial statements have been delivered and the
denominator of which is three hundred sixty five (365).



14









 





     “Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate
Commitment.



     “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.



     “Purchasers” is defined in Section 12.3.1.



     “Rate Management Obligations” means any and all obligations of the Borrower or any
Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii) any and all cancellations,
buy backs, reversals, terminations or assignments of any Rate Management Transactions.



     “Rate Management Transaction” means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between the Borrower or any Subsidiary and
any Lender or Affiliate thereof which is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any option with respect to
any of these transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other financial measures.



     “Register” is defined in Section 12.3.4.



     “Regulation D” means Regulation D of the Board as from time to time in effect and any
successor thereto or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal Reserve System.



     “Regulation U” means Regulation U of the Board as from time to time in effect and any
successor or other regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.



     “Reimbursement Obligations” means, at any time, the aggregate of all obligations of
the Borrower then outstanding under Section 2.19 to reimburse the LC Issuer for amounts
paid by the LC Issuer in respect of any one or more drawings under Facility LCs.



     “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.



     “Reports” is defined in Section 9.6.



15









 





     “Required Lenders” means Lenders in the aggregate having greater than 50% of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate
holding at least a majority of the Aggregate Outstanding Credit Exposure.



     “Revolving Loan” means, with respect to a Lender, such Lender’s loan made pursuant to
its commitment to lend set forth in Section 2.1 (or any conversion or continuation
thereof).



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



     “Schedule” refers to a specific schedule to this Agreement, unless another document is
specifically referenced.



     “SEC” means the United States Securities and Exchange Commission, together with any
successor agency responsible for the administration and enforcement of the Securities Act of 1933
and the Exchange Act, as amended from time to time.



     “Section” means a numbered section of this Agreement, unless another document is
specifically referenced.



     “Secured Indebtedness” means any Indebtedness secured by a Lien.



     “Single Employer Plan” means a Plan maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled Group.



     “Stated Rate” is defined in Section 2.26.



     “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including
any marginal, special, emergency or supplemental reserves or other requirements) established by any
central bank, monetary authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or liabilities customarily used
to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of Dollar denominated Loans, include those imposed pursuant
to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve,
liquid asset or similar requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under any applicable law, rule or
regulation, including Regulation D. The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve, liquid asset or similar requirement.



     “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



16









 







expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of
the Borrower.



     “Subsidiary Guarantee Agreement” means the agreement in the form of Exhibit F
hereto executed by a Subsidiary whereby it acknowledges it is party thereto as a Guarantor.



     “Substantial Portion” means, (A) for purposes of Section 6.13, Property of the
Borrower and its Subsidiaries which represents more than the lesser of (i) 25% of the consolidated
assets of the Borrower and its Subsidiaries (determined in accordance with GAAP) or Property which
is responsible for more than 25% of the consolidated net sales of the Borrower and its
Subsidiaries, in either case, in any fiscal year during the term of this Agreement or (ii)
$225,000,000 of Property of the Borrower and its Subsidiaries (determined in accordance with GAAP)
during the term of this Agreement and (B) for purposes of Sections 7.7, 7.8 and
7.9, $225,000,000 of Property of the Borrower and its Subsidiaries (as determined in
accordance with GAAP).



     “Swing Line Borrowing Notice” is defined in Section 2.5.2.



     “Swing Line Commitment” means the obligation of the Swing Line Lender to make Swing
Line Loans up to a maximum principal amount of $20,000,000 at any one time outstanding.



     “Swing Line Lender” means JPMorgan Chase Bank, National Association or such other
Lender which may succeed to its rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.



     “Swing Line Loan” means a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.5.



     “Target EBITDA” means, with respect to any Person or assets acquired pursuant to an
Acquisition, for any period, the net income (or loss) of such Person and its Subsidiaries (or
attributable to such assets) calculated on a consolidated basis for such period in accordance with
GAAP plus, to the extent deducted from revenues in determining the net income (or loss) of
such Person and its Subsidiaries (or attributable to such assets) as described above, (i) the
interest expense of such Person and its Subsidiaries calculated on a consolidated basis for such
period, (ii) provision for taxes, (iii) depreciation, (iv) amortization, (v) only those synergies
or cost savings that are based on contractual rights and that are fully realized within ninety (90)
days after the consummation of such Acquisition, and (vi) extraordinary losses incurred other than
in the ordinary course of business, minus, to the extent included in Consolidated Net Income,
extraordinary gains realized other than in the ordinary course of business.



     “Taxes” means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings arising out of or relating to the Loan Documents, the
Obligations or any payments made in respect of the Obligations, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.



     “Transferee” is defined in Section 12.4.



17









 





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



     “Unfunded Liabilities” means the amount (if any) by which the present value of all
vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value
of all such Plan assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans using the actuarial assumptions set forth in Note I to the financial
statements referred to in Section 5.4.



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



     “Voting Stock” of any Person means capital stock of any class or classes or other
equity interests (however designated) having ordinary voting power for the election of directors or
similar governing body of such Person, other than stock or other equity interests (other than
directors’ qualifying shares as required by law) shall be owned by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries.



     “Wholly Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly Owned Subsidiaries of such Person, or by such Person and one or
more Wholly Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.



     The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.



ARTICLE 2.

THE CREDITS




     2.1. Commitment. From and including the date of this Agreement and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to (i) make Advances to the Borrower in Agreed Currencies and (ii) participate in
Facility LCs issued upon the request of the Borrower, provided that (a) all Floating Rate Advances
shall be made in Dollars and (b) after giving effect to the making of each such Advance and the
issuance of each such Facility LC, such Lender’s Outstanding Credit Exposure shall not exceed its
Pro Rata Share of the Aggregate 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
to lend hereunder shall expire on the Facility Termination Date. The LC Issuer will issue Facility
LCs hereunder on the terms and conditions set forth in Section 2.19.



     2.2. Determination of Dollar Amounts; Termination.



          2.2.1. Determination. The Administrative Agent will determine the Dollar Amount of:




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	 	(a)	 	each Advance to be made hereunder in an
Agreed Currency other than Dollars as of the date three Business Days
prior to the Borrowing Date or, if applicable, date of
conversion/continuation of such Advance, and
	 
	 	(b)	 	all outstanding Advances on and as of the
last Business Day of each quarter and on any other Business Day
elected by the Administrative Agent in its discretion or upon
instruction by the Required Lenders.




Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (a) and (b) is herein described as a “Computation Date” with respect to
each Advance for which a Dollar Amount is determined on or as of such day. If at any time the
Dollar Amount of the sum of the aggregate principal amount of all outstanding Advances (calculated,
with respect to those Advances denominated in Agreed Currencies other than Dollars, as of the most
recent Computation Date with respect to each such Advance) exceeds the Aggregate Commitment, the
Borrower shall immediately repay Advances in an aggregate principal amount sufficient to eliminate
any such excess.




          2.2.2. Termination. The Aggregate Outstanding Credit Exposure and all other unpaid
Obligations, including without limitation all Swing Line Loans, shall be paid in full by the
Borrower on the Facility Termination Date.




     2.3. Ratable Loans. Each Advance (other than a Swing Line Loan) hereunder shall
consist of Loans made from the several Lenders ratably according to their Pro Rata Shares.



     2.4. Types of Advances. The Advances may be Floating Rate Advances or Eurocurrency
Advances, or a combination thereof, selected by the Borrower in accordance with Sections
2.9 and 2.10.



     2.5. Swing Line Loans.



          2.5.1. Amount of Swing Line Loans. Upon the satisfaction of the conditions precedent
set forth in Section 4.2 and, if such Swing Line Loan is to be made on the date of the
initial Advance hereunder, the satisfaction of the conditions precedent set forth in Section
4.1 as well, from and including the date of this Agreement and prior to the Facility
Termination Date, the Swing Line Lender agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans to the Borrower from time to time in an aggregate principal
amount not to exceed the Swing Line Commitment, provided that, at Administrative Agent’s option,
the Aggregate Outstanding Credit Exposure shall not at any time exceed the Aggregate Commitment,
and provided further that at no time shall the sum of (i) the Swing Line Lender’s Pro Rata Share of
the Swing Line Loans, plus (ii) the outstanding Revolving Loans made by the Swing Line Lender
pursuant to Section 2.1, plus (iii) the Swing Line Lender’s Pro Rata Share of LC
Obligations exceed the Swing Line Lender’s Commitment at such time. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.




19









 








          2.5.2. Borrowing Notice. The Borrower shall deliver to the Administrative Agent and
the Swing Line Lender irrevocable notice (a “Swing Line Borrowing Notice”) not later than
noon (Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the applicable
Borrowing Date (which date shall be a Business Day), and (ii) the aggregate amount of the requested
Swing Line Loan, which shall be an amount not less than $100,000. The Swing Line Loans shall bear
interest at the Floating Rate.




          2.5.3. Making of Swing Line Loans. Promptly after receipt of a Swing Line Borrowing
Notice, the Administrative Agent shall notify each Lender by fax, or other similar form of
transmission, of the requested Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Lender shall make available the Swing Line Loan, in funds
immediately available in Chicago, to the Administrative Agent at its address specified pursuant to
Article 13. The Administrative Agent will promptly make the funds so received from the
Swing Line Lender available to the Borrower on the Borrowing Date at the Administrative Agent’s
aforesaid address.




          2.5.4. Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in full by
the Borrower on or before the fifth (5th) Business Day after the Borrowing Date for such Swing Line
Loan. In addition, the Swing Line Lender (i) may at any time in its sole discretion with respect
to any outstanding Swing Line Loan, or (ii) shall on the fifth (5th) Business Day after the
Borrowing Date of any Swing Line Loan, require each Lender (including the Swing Line Lender) to
make a Revolving Loan in the amount of such Lender’s Pro Rata Share of such Swing Line Loan
(including, without limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Not later than noon (Chicago time) on the date of any notice
received pursuant to this Section 2.5.4, each Lender shall make available its required
Revolving Loan, in funds immediately available in Chicago, to the Administrative Agent at its
address specified pursuant to Article 13. Revolving Loans made pursuant to this
Section 2.5.4 shall initially be Floating Rate Advances and thereafter may be continued as
Floating Rate Advances or converted into Eurodollar Advances in the manner provided in Section
2.10 and subject to the other conditions and limitations set forth in this Article 2.
Unless a Lender notified the Swing Line Lender, prior to its making any Swing Line Loan, that any
applicable condition precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender’s obligation to make Revolving Loans pursuant to this Section 2.5.4
to repay Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and shall
not be affected by any circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Administrative Agent, the
Swing Line Lender or any other Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or otherwise) of the Borrower, or (d)
any other circumstance, happening or event whatsoever. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this Section 2.5.4, the
Administrative Agent shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Lender fails to make payment to the Administrative
Agent of any amount due under this Section 2.5.4, such Lender shall be deemed, at the
option of the Administrative Agent, to have unconditionally and irrevocably purchased from the
Swing Line Lender, without recourse or warranty, an undivided interest and




20









 







participation in the applicable Swing Line Loan in the amount of such Lender’s Revolving Loan,
and such interest and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period commencing on the date
of demand and ending on the date such amount is received. On the Facility Termination Date, the
Borrower shall repay in full the outstanding principal balance of the Swing Line Loans.




     2.6. Commitment Fee; Reduction and Increase in Aggregate Commitment.



          2.6.1. Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender, according to its Pro Rata Share, a Commitment Fee (“Commitment
Fee”) at a per annum rate equal to the Applicable Fee Rate on the daily Available Aggregate
Commitment from the date hereof to and including the Facility Termination Date, payable quarterly
in arrears on the last day of each of March, June, September and December during the Term hereof
and on the Facility Termination Date. Swing Line Loans shall not count as usage of any Lender’s
Commitment for purpose of calculating the Commitment Fee due hereunder.




          2.6.2. Reduction of 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 (or
the Approximate Equivalent Amount if denominated in an Agreed Currency other than Dollars), upon at
least one Business Day’s written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction, provided, however, that the amount of the Aggregate Commitment may
not be reduced below the aggregate principal Dollar Amount of the then Aggregate Outstanding Credit
Exposure. All accrued Commitment Fees shall be payable on the effective date of any termination of
the obligations of the Lenders to make Credit Extensions hereunder. For purposes of calculating
the Commitment Fee hereunder, the principal amount of each Credit Extension made in an Agreed
Currency other than Dollars shall be at any time the Dollar Amount of such Credit Extension as
determined on the most recent Computation Date with respect to such Credit Extension.




          2.6.3. Increased Commitment.




               (a) The Borrower, may at any time, by written notice to the Administrative Agent, propose that
the total Commitments hereunder be increased (each such proposed increase being a “Commitment
Increase”), and promptly thereafter the Administrative Agent shall specify each existing Lender
(each an “Increasing Lender”) and/or each additional lender (each an “Assuming
Lender”) that shall have agreed to an increased or additional Commitment and the date on which
such increase is to be effective (the “Commitment Increase Date”), which shall be a
Business Day at least three Business Days after delivery of such notice and 30 days prior to the
Facility Termination Date; provided that:




	 	(i)	 	that the minimum amount
of the Commitment of any Assuming Lender, and the minimum
amount of the increase of the Commitment of any Increasing
Lender, as part of such Commitment Increase shall be
$5,000,000 or a larger multiple of $1,000,000;




21









 







	 	(ii)	 	immediately after giving
effect to such Commitment Increase, the Aggregate
Commitments hereunder shall not exceed $350,000,000;
	 
	 	(iii)	 	no Default shall have
occurred and be continuing on such Commitment Increase Date
or shall result from the proposed Commitment Increase;
	 
	 	(iv)	 	the representations and
warranties contained in this Agreement shall be true and
correct on and as of the Commitment Increase Date as if made
on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a
specific date, as of such specific date).





               (b) The Assuming Lender, if any, shall become a Lender hereunder as of such Commitment
Increase Date and the Commitment of any Increasing Lender and such Assuming Lender shall be
increased as of such Commitment Increase Date; provided that:




	 	(i)	 	the Administrative Agent
shall have received on or prior to 9:00 a.m., Chicago time,
on such Commitment Increase Date a certificate of a duly
authorized officer of the Borrower stating that each of the
applicable conditions to such Commitment Increase set forth
in this Section 2.6.3 has been satisfied;
	 
	 	(ii)	 	with respect to each
Assuming Lender, the Administrative Agent shall have
received, on or prior to 9:00 a.m., Chicago time, on such
Commitment Increase Date, an agreement, in form and
substance reasonably satisfactory to the Borrower and the
Administrative Agent, pursuant to which such Assuming Lender
shall, effective as of such Commitment Increase Date,
undertake a Commitment, duly executed by such Assuming
Lender and the Borrower and acknowledged by the
Administrative Agent; and
	 
	 	(iii)	 	each Increasing Lender
shall have delivered to the Administrative Agent, on or
prior to 9:00 a.m., Chicago time, on such Commitment
Increase Date, confirmation in writing satisfactory to the
Administrative Agent as to its increased Commitment, with a
copy of such confirmation to the Borrower.





               (c) Upon its receipt of confirmation from an Increasing Lender that it is increasing its
Commitment hereunder together with the certificate referred to in
Section 2.6.3(b)(i)



22









 




 above, the Administrative Agent shall (i) record the information contained
therein in the Register and (ii) give prompt notice thereof to the Borrower. Upon its receipt of
an agreement referred to in Section 2.6.3(b)(ii) above executed by an Assuming Lender,
together with the certificate referred to in Section 2.6.3(b)(i) above, the Administrative
Agent shall, if such agreement has been completed, (x) accept such agreement, (y) record the
information contained therein in the Register and (z) give prompt notice thereof to the Borrower.




               (d) In the event that the Administrative Agent shall have received notice from the Borrower as
to any agreement with respect to a Commitment Increase on or prior to the relevant Commitment
Increase Date and the actions provided for in Sections 2.6.3(b)(i) through (b)(ii)
above shall have occurred by 9:00 a.m., Chicago time, on such Commitment Increase Date, the
Administrative Agent shall notify the Lenders (including any Assuming Lenders) of the occurrence of
such Commitment Increase Date promptly on such date by facsimile transmission or electronic
messaging system. On the date of such Commitment Increase, the Borrower shall (i) prepay the
outstanding Advances (if any) and any Swing Line Loan (if any) in full, (ii) simultaneously borrow
new Advances hereunder in an amount equal to such prepayment, so that, after giving effect thereto
the Advances are held ratably by the Lenders in accordance with the respect Commitments of such
Lenders (after giving effect to such Commitment Increase and any Lender’s Pro Rata Share of any LC
Obligation) and (iii) pay to the Lenders the amounts, if any, payable under Section 3.4.



     2.7. Minimum Amount of Each Advance. Each Eurocurrency Advance shall be in a minimum
amount of $5,000,000 and in multiples of $1,000,000 if in excess thereof (or the Approximate
Equivalent Amounts if denominated in an Agreed Currency other than Dollars), and each Floating Rate
Advance (other than an Advance to repay Swing Line Loans) shall be in the minimum amount of
$1,000,000 (and in multiples of $500,000 if in excess thereof), provided, however, that any
Floating Rate Advance may be in the amount of the Available Aggregate Commitment.



     2.8. Optional Principal Payments. The Borrower may from time to time pay, without
penalty or premium, all outstanding Floating Rate Advances (other than Swing Line Loans), or, in a
minimum aggregate amount of $1,000,000 or any integral multiple of $100,000 in excess thereof, any
portion of the outstanding Floating Rate Advances (other than Swing Line Loans) upon one Business
Days’ prior notice to the Administrative Agent. The Borrower may at any time pay, without penalty
or premium, all outstanding Swing Line Loans, or, in a minimum amount of $100,000 and increments of
$50,000 in excess thereof, any portion of the outstanding Swing Line Loans, with notice to the
Administrative Agent and Swing Line Lender by 11:00 a.m. (Chicago time) on the date of repayment.
The Borrower may at any time prior to the last day of the Interest Period, subject to the payment
of any funding indemnification amounts required by Section 3.4 but without penalty or
premium, pay all outstanding Eurocurrency Advances or any portion of the outstanding Eurocurrency
Advances upon three Business Days’ prior notice to the Administrative Agent.



     2.9. Method of Selecting Types and Interest Periods for New Advances. The Borrower
shall select the Type of Advance and, in the case of each Eurocurrency Advance, the Interest Period
and Agreed Currency applicable thereto from time to time. The Borrower shall give the
Administrative Agent irrevocable notice (a “Borrowing Notice”) not later than 10:00



23









 







a.m. (Chicago time) at least one Business Day before the Borrowing Date of each Floating Rate
Advance, three Business Days before the Borrowing Date for each Eurocurrency Advance denominated in
Dollars and four Business Days before the Borrowing Date for each Eurocurrency Advance denominated
in an Agreed Currency other than Dollars (provided, however, in the case of each Eurocurrency
Advance to be made by the Lenders from their offices in the United Kingdom, the Borrower shall also
provide telephonic or written notice concurrently to J.P. Morgan Europe Limited, 125 London Wall,
London EC24 5AJ, Attn: Loans Agency, Fax: 44-207-777-2360, Telephone: 44-207-777-2352/2355,
Attn: Agency Department), specifying:




	 	(a)	 	the Borrowing Date, which shall be a Business Day, of such
Advance,
	 
	 	(b)	 	the aggregate amount of such Advance,
	 
	 	(c)	 	the Type of Advance selected, and
	 
	 	(d)	 	in the case of each Eurocurrency Advance, the Interest Period
and Agreed Currency applicable thereto.





     2.10. Conversion and Continuation of Outstanding Advances. Floating Rate Advances
(other than Swing Line Loans) shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurocurrency Advances pursuant to this Section
2.10 or are repaid in accordance with Section 2.8. Each Eurocurrency Advance shall
continue as a Eurocurrency Advance until the end of the then applicable Interest Period therefor,
at which time:




	 	(a)	 	each such Eurocurrency Advance denominated in Dollars shall be
automatically converted into a Floating Rate Advance unless (i) such
Eurocurrency Advance is or was repaid in accordance with Section 2.8 or
(ii) 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 Eurocurrency Advance either continue as a
Eurocurrency Advance for the same or another Interest Period or be converted
into a Floating Rate Advance; and
	 
	 	(b)	 	each such Eurocurrency Advance denominated in an Agreed
Currency other than Dollars shall automatically continue as a Eurocurrency
Advance in the same Agreed Currency with an Interest Period of one month unless
(i) such Eurocurrency Advance is or was repaid in accordance with Section
2.8 or (ii) 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 Eurocurrency Advance continue as a Eurocurrency
Advance for the same or another Interest Period.




Subject to the terms of Section 2.10, the Borrower may elect from time to time to convert
all or any part of an Advance of any Type (other than a Swing Line Loan) into any other Type or
Types of Advances denominated in the same or any other Agreed Currency; provided that any


24









 






conversion of any Eurocurrency Advance shall be made on, and only on, the last day of the 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
Eurocurrency 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, three Business Days, in the case of a conversion
into or continuation of a Eurocurrency Advance denominated in Dollars, or four Business Days, in
the case of a conversion into or continuation of a Eurocurrency Advance denominated in an Agreed
Currency other than Dollars, prior to the date of the requested conversion or continuation,
specifying:





	 	(a)	 	the requested date, which shall be a Business Day, of such
conversion or continuation, and
	 
	 	(b)	 	the Agreed Currency, amount and Type(s) of Advance(s) into
which such Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance, the duration of the
Interest Period applicable thereto.





     2.11. Method of Borrowing. On each Borrowing Date, each Lender shall make available
its Loan or Loans, if any, (i) if such Loan is denominated in Dollars, not later than noon, Chicago
time, in Federal or other funds immediately available to the Administrative Agent, in Chicago,
Illinois at its address specified in or pursuant to Article 13 and, (ii) if such Loan is
denominated in an Agreed Currency other than Dollars, not later than noon, local time, in the city
of the Administrative Agent’s Eurocurrency Payment Office for such currency, in such funds as may
then be customary for the settlement of international transactions in such currency in the city of
and at the address of the Administrative Agent’s Eurocurrency Payment Office for such currency.
Unless the Administrative Agent determines that any applicable condition specified in Article
4 has not been satisfied, the Administrative Agent will make the funds so received from the
Lenders available to the Borrower at the Administrative Agent’s aforesaid address. Notwithstanding
the foregoing provisions of this Section 2.11, to the extent that a Loan made by a Lender
matures on the Borrowing Date of a requested Loan, such Lender shall apply the proceeds of the Loan
it is then making to the repayment of principal of the maturing Loan.



     2.12. Changes in Interest Rate, etc. Each Floating Rate Advance (other than a Swing
Line Loan) shall bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurocurrency Advance into a Floating
Rate Advance pursuant to Section 2.10 to but excluding the date it becomes due or is
converted into a Eurocurrency Advance pursuant to Section 2.10 hereof, at a rate per annum
equal to the Floating Rate for such day. Each Swing Line Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the day such Swing Line Loan
is made to but excluding the date it is paid, at a rate per annum equal to the Floating 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
Eurocurrency Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the



25









 







Administrative Agent as applicable to such Eurocurrency Advance based upon the Borrower’s
selections under Sections 2.9 and 2.10 and otherwise in accordance with the terms
hereof. No Interest Period may end after the Facility Termination Date.



     2.13. Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Section 2.9, 2.10 or 2.11, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the Borrower, declare
that no Advance may be made as, converted into or continued as a Eurocurrency Advance. During the
continuance of a Default the Required Lenders may, at their option, by notice to the Borrower,
declare that (i) each Eurocurrency 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 (ii)
each Floating Rate Advance shall bear interest at a rate per annum equal to the Floating Rate in
effect from time to time plus 2% per annum, provided that, during the continuance of a Default
under Section 7.7, the interest rates set forth in clauses (i) and (ii) above shall be
applicable to all Advances without any election or action on the part of the Administrative Agent
or any Lender.



     2.14. Method of Payment. Each Advance shall be repaid and each payment of interest
thereon shall be paid in the currency in which such Advance was made. All payments of the
Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at (except as set forth in the next sentence) the
Administrative Agent’s address specified pursuant to Article 13, or at any other Lending
Installation of the Administrative Agent specified in writing by the Administrative Agent to the
Borrower, by noon (local time) on the date when due and shall (except with respect to repayments of
Swing Line Loans) be applied ratably by the Administrative Agent among the Lenders. All payments
to be made by the Borrower hereunder in any currency other than Dollars shall be made in such
currency on the date due in such funds as may then be customary for the settlement of international
transactions in such currency for the account of the Administrative Agent, at its Eurocurrency
Payment Office for such currency and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at, (a) with respect to Floating Rate Advances and Eurocurrency
Advances denominated in Dollars, its address specified pursuant to Article 13 or at any
Lending Installation specified in a notice received by the Administrative Agent from such Lender
and (b) with respect to Eurocurrency Advances denominated in an Agreed Currency other than Dollars,
in the funds received from the Borrower at the address of the Administrative Agent’s Eurocurrency
Payment Office for such currency. The Administrative Agent is hereby authorized to charge any
account of the Borrower maintained with JPMorgan Chase Bank, National Association or any of its
Affiliates for each payment, in the case of principal, one day after it becomes due hereunder, in
the case of interest, five days after it becomes due hereunder and, in the case of fees, five days
after it becomes due hereunder.



     2.15. Currency Regulations. Notwithstanding the foregoing provisions of Section
2.14, if, after the making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such currency with the result that
the type of currency in which the Advance was made (the “Original Currency”) no longer
exists or the Borrower is not able to make payment to the Administrative Agent for the account of
the



26









 







Lenders in such Original Currency, then all payments to be made by the Borrower hereunder in
such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as
of the date of repayment) of such payment due, it being the intention of the parties hereto that
the Borrower take all risks of the imposition of any such currency control or exchange regulations.



     2.16. Noteless Agreement; Evidence of Indebtedness.



          2.16.1. Lender’s Records. 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, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.




          2.16.2. Administrative Agent’s Records. The Administrative Agent shall maintain
accounts in which it will record (a) the amount of each Loan made hereunder, the Agreed Currency
and Type thereof and the Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (c) the amount of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender’s share thereof.




          2.16.3. Prima Facie Evidence. The entries maintained in the accounts maintained
pursuant to Sections 2.16.1 and 2.16.2 above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided, however, that the failure of
the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Obligations in accordance with their
terms.




          2.16.4. Notes. Any Lender may request that its Loans be evidenced by a promissory
note, or, in the case of the Swing Line Lender, promissory notes representing its Revolving Loans
and Swing Line Loans, respectively, substantially in the form of Exhibit E, with
appropriate changes for notes evidencing Swing Line Loans (each a “Note”). In such event,
the Borrower shall prepare, execute and deliver to such Lender a Note payable to the order of such
Lender in a form supplied by the Administrative Agent. Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (prior to any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee named therein,
except to the extent that any such Lender subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in Sections 2.16.1 and
2.16.2 above.




     2.17. Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Agreed
Currencies and 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 and Conversion/Continuation Notices to be given telephonically.
The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, if
such confirmation is requested by the Administrative Agent or any Lender, of



27









 







each telephonic notice signed by an Authorized Officer. 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.



     2.18. 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 the 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 Eurocurrency Advance on a day other
than a Payment Date shall be payable on the date of conversion. Interest accrued on each
Eurocurrency Advance shall be payable on the last day of its applicable Interest Period, on any
date on which the Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurocurrency 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 commitment fees shall be calculated for actual days elapsed on the
basis of a 360-day year, except for interest on Floating Rate Advances and Advances denominated in
British Pounds Sterling which shall be calculated for actual days elapsed on the basis of a 365-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 (local 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.



     2.19. Facility LCs.



          2.19.1. Issuance. The LC Issuer hereby agrees, on the terms and conditions set forth
in this Agreement, to issue standby and commercial letters of credit denominated in Agreed
Currencies (each, a “Facility LC”) and to renew, extend, increase, decrease or otherwise
modify each Facility LC (“Modify”, and each such action a “Modification”), from
time to time from and including the date of this Agreement and prior to the Facility Termination
Date upon the request of the Borrower; provided that immediately after each such Facility LC is
issued or Modified, (i) the aggregate amount of the outstanding LC Obligations shall not exceed the
Dollar Amount of $100,000,000 and (ii) the Aggregate Outstanding Credit Exposure shall not exceed
the Aggregate Commitment; provided, however, if the LC Issuer is requested to issue Letters
of Credit with respect to a jurisdiction the LC Issuer deems, in its reasonable judgment, may at
any time subject it to a New Money Credit Event or a Country Risk Event, the Borrower shall, at the
request of the LC Issuer, guaranty and indemnify the LC Issuer against any and all costs,
liabilities and losses resulting from such New Money Credit Event or Country Risk Event, in each
case in a form and substance reasonably satisfactory to the LC Issuer. No Facility LC shall have
an expiry date later than the earlier of (x) the fifth Business Day prior to the Facility
Termination Date unless the Borrower has provided cash collateral as provided in Section
2.19.12 and (y) two years after its issuance, provided that any Facility LC may provide for the
renewal thereof for additional periods.




          2.19.2. Participations. Upon the issuance or Modification by the LC Issuer of a
Facility LC in accordance with this Section 2.19, the LC Issuer shall be deemed, without
further




28









 







action by any party hereto, to have unconditionally and irrevocably sold to each Lender, and
each Lender shall be deemed, without further action by any party hereto, to have unconditionally
and irrevocably purchased from the LC Issuer, a participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in proportion to its Pro Rata Share.




          2.19.3. Notice. Subject to Section 2.19.1, the Borrower shall give the LC
Issuer notice prior to 10:00 a.m. (Chicago time) at least five Business Days prior to the proposed
date of issuance or Modification of each Facility LC, specifying the beneficiary, the proposed date
of issuance (or Modification) and the expiry date of such Facility LC, and describing the proposed
terms of such Facility LC, the Agreed Currency applicable thereto and the nature of the
transactions proposed to be supported thereby. Upon receipt of such notice, the LC Issuer shall
promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each
Lender, of the contents thereof and of the amount of such Lender’s participation in such proposed
Facility LC. The issuance or Modification by the LC Issuer of any Facility LC shall, in addition
to the conditions precedent set forth in Article 4 (the satisfaction of which the LC Issuer
shall have no duty to ascertain), be subject to the conditions precedent that such Facility LC
shall be reasonably satisfactory to the LC Issuer and that the Borrower shall have executed and
delivered such application agreement and/or such other instruments and agreements relating to such
Facility LC as the LC Issuer shall have reasonably requested (each, a “Facility LC
Application”). In the event of any conflict between the terms of this Agreement and the terms
of any Facility LC Application, the terms of this Agreement shall control.




          2.19.4. LC Fees. The Borrower shall pay to the Administrative Agent, for the account
of the Lenders ratably in accordance with their respective Pro Rata Shares, with respect to each
Facility LC, a one-time letter of credit fee in an amount equal to the percentage rate per annum
identified as the LC Fee in the Pricing Schedule, applied to the initial stated amount (or, with
respect to a Modification of any such Facility LC which increases the stated amount thereof, such
increase in the stated amount) thereof, such fee to be payable on the last day of each calendar
quarter prior to its expiry date (each such fee described in this sentence an “LC Fee”).
The Borrower shall also pay to the LC Issuer for its own account (x) at the time of issuance of
each Facility LC, a one-time fronting fee in an amount equal to the lesser of (i) 0.125% of the
initial stated amount (or, with respect to a Modification of any such Facility LC which increases
the stated amount thereof, such increase in the stated amount) thereof or (ii) an amount agreed to
by the LC Issuer, and (y) reasonable and customary documentary and processing charges in connection
with the issuance or Modification of and draws under Facility LCs in accordance with the LC
Issuer’s standard schedule for such charges as in effect from time to time.




          2.19.5. Administration; Reimbursement by Lenders. Upon receipt from the beneficiary
of any Facility LC of any demand for payment under such Facility LC, the LC Issuer shall notify the
Administrative Agent and the Administrative Agent shall promptly notify the Borrower and each other
Lender as to the amount to be paid by the LC Issuer as a result of such demand and the proposed
payment date (the “LC Payment Date”). The responsibility of the LC Issuer to the Borrower
and each Lender shall be only to determine that the documents (including each demand for payment)
delivered under each Facility LC in connection with such presentment shall be in conformity in all
material respects with such Facility LC. The LC Issuer shall endeavor to exercise the same care in
the issuance and administration of the Facility LCs as it does with respect to letters of credit in
which no participations are granted, it being understood




29









 







that in the absence of any gross negligence or willful misconduct by the LC Issuer, each
Lender shall be unconditionally and irrevocably liable without regard to the occurrence of any
Default or any condition precedent whatsoever, to reimburse the LC Issuer on demand for (i) such
Lender’s Pro Rata Share of the amount of each payment made by the LC Issuer under each Facility LC
to the extent such amount is not reimbursed by the Borrower pursuant to Section 2.19.6
below, plus (ii) interest on the foregoing amount to be reimbursed by such Lender, for each day
from the date of the LC Issuer’s demand for such reimbursement (or, if such demand is made after
11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on which
such Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Effective Rate for the first three days and, thereafter, at a rate of interest equal
to the rate applicable to Floating Rate Advances.




          2.19.6. Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable LC Payment Date in
Dollars the Dollar Amount equal to any amounts to be paid by the LC Issuer upon any drawing under
any Facility LC (or if the LC Issuer shall elect in its sole discretion by notice to the Borrower,
in such other Agreed Currency paid by the LC Issuer), without presentment, demand, protest or other
formalities of any kind; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by (i) the willful misconduct
or gross negligence of the LC Issuer in determining whether a request presented under any Facility
LC issued by it complied with the terms of such Facility LC or (ii) the LC Issuer’s failure to pay
under any Facility LC issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. All such amounts paid by the LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to (x) the rate applicable to Floating Rate Advances for such day if such
day falls on or before the applicable LC Payment Date and (y) the sum of 2% plus the rate
applicable to Floating Rate Advances for such day if such day falls after such LC Payment Date.
The LC Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all amounts
received by it from the Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by the LC Issuer, but only to the
extent such Lender has made payment to the LC Issuer in respect of such Facility LC pursuant to
Section 2.19.5. Subject to the terms and conditions of this Agreement (including without
limitation the submission of a Borrowing Notice in compliance with Section 2.9 and the
satisfaction of the applicable conditions precedent set forth in Article 4), the Borrower
may request an Advance hereunder for the purpose of satisfying any Reimbursement Obligation.




          2.19.7. Obligations Absolute. The Borrower’s obligations under this Section
2.19 shall be absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or have had against the
LC Issuer, any Lender or any beneficiary of a Facility LC. The Borrower further agrees with the LC
Issuer and the Lenders that the LC Issuer and the Lenders shall not be responsible for, and the
Borrower’s Reimbursement Obligation in respect of any Facility LC shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any
dispute between or among the Borrower, any of its Affiliates, the beneficiary of




30









 







any Facility LC or any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of its Affiliates
against the beneficiary of any Facility LC or any such transferee. The LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Facility LC. The Borrower agrees
that any action taken or omitted by the LC Issuer or any Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross negligence or willful
misconduct, shall be binding upon the Borrower and shall not put the LC Issuer or any Lender under
any liability to the Borrower. Nothing in this Section 2.19.7 is intended to limit the
right of the Borrower to make a claim against the LC Issuer for damages as contemplated by the
proviso to the first sentence of Section 2.19.6.




          2.19.8. Actions of LC Issuer. The LC Issuer shall be entitled to rely, and shall be
fully protected in relying, upon any Facility LC, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer. The LC Issuer shall
be fully justified in failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as it reasonably deems
appropriate or it shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of taking or continuing to
take any such action. Notwithstanding any other provision of this Section 2.19, the LC
Issuer shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Lenders and any future holders
of a participation in any Facility LC.




          2.19.9. Indemnification. The Borrower hereby agrees to indemnify and hold harmless
each Lender, the LC Issuer and the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims and damages, losses, liabilities, costs or
expenses which such Lender, the LC Issuer or the Administrative Agent may incur (or which may be
claimed against such Lender, the LC Issuer or the Administrative Agent by any Person whatsoever) by
reason of or in connection with the issuance, execution and delivery or transfer of or payment or
failure to pay under any Facility LC or any actual or proposed use of any Facility LC, including,
without limitation, any claims, damages, losses, liabilities, costs or expenses which the LC Issuer
may incur by reason of or on account of the LC Issuer issuing any Facility LC which specifies that
the term “Beneficiary” included therein includes any successor by operation of law of the named
Beneficiary, but which Facility LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document, satisfactory to the LC Issuer, evidencing
the appointment of such successor Beneficiary; provided that the Borrower shall not be required to
indemnify any Lender, the LC Issuer or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the LC Issuer in determining whether a request presented under
any Facility LC complied with the terms of such Facility LC or (y) the LC Issuer’s failure to pay
under any Facility LC after the presentation to it of a request strictly complying with the terms
and




31









 







conditions of such Facility LC. Nothing in this Section 2.19.9 is intended to limit
the obligations of the Borrower under any other provision of this Agreement.




          2.19.10. Lenders’ Indemnification. Each Lender shall, ratably in accordance with its
Pro Rata Share, indemnify the LC Issuer, its Affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees’ gross negligence or willful misconduct or the LC
Issuer’s failure to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.19 or any action taken or omitted by such
indemnitees hereunder.




          2.19.11. Rights as a Lender. In its capacity as a Lender, the LC Issuer shall have
the same rights and obligations as any other Lender.




          2.19.12. Cash Collateral. Notwithstanding anything to the contrary herein or in any
application for a Letter of Credit, following the occurrence and during the continuance of a
Default and upon the request of the Required Lenders or upon payout or termination of this
Agreement in full in cash, the Borrower shall, on the third (3rd) Business Day after it
receives Administrative Agent’s demand or as required pursuant to Section 8.1, deliver to
the Administrative Agent for the benefit of the Lenders and the LC Issuer, cash, or other
collateral of a type reasonably satisfactory to the Required Lenders, having a value, as reasonably
determined by such Lenders, equal to one hundred five percent (105%) of the aggregate amount of its
outstanding L/C Obligations. Any such collateral shall be held by the Administrative Agent in a
separate interest-bearing account appropriately designated as a cash collateral account in relation
to this Agreement and the Facility LCs (the “Facility LC Collateral Account”) and retained
by the Administrative Agent for the benefit of the Lenders and the LC Issuer as collateral security
for the Borrower’s obligations in respect of this Agreement and each of the Facility LCs. Such
amounts shall be applied to reimburse the LC Issuer for drawings or payments under or pursuant to
Facility LCs , or if no such reimbursement is required, to payment of such of the other Obligations
as the Administrative Agent shall determine. Amounts remaining in any Facility LC Collateral
Account established pursuant to this Section 2.19.12 which are not applied to reimburse an
LC Issuer for amounts actually paid or to be paid by such LC Issuer in respect of a Facility LC
shall be returned to the Borrower within one (1) Business Day (after deduction of the
Administrative Agent’s expenses incurred in connection with such Facility LC Collateral Account).




          2.19.13. Transitional Letters of Credit. Schedule 2.19.13 contains a schedule
of certain Letters of Credit issued for the account of the Borrower prior to the date of this
Agreement pursuant to the Existing Credit Agreement. Subject to the satisfaction of the applicable
conditions contained in Section 4.1, from and after the date of this Agreement such Letters
of Credit shall be deemed to be Facility LCs issued pursuant to this Section 2.19 for all
purposes hereunder. For purposes of clarification, each term or provision applicable to the
issuance of a Facility LC shall be deemed to include the deemed issuance of the Letters of Credit
listed on Schedule 2.19.13.




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     2.20. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents
of each Aggregate Commitment reduction notice, Borrowing Notice, Swing Line 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 Eurocurrency Advance promptly
upon determination of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate.



     2.21. Lending Installations. Each Lender will book its Loans at the appropriate
Lending Installation listed on Schedule 4 or such other Lending Installation designated by
such Lender in accordance with the final sentence of this Section 2.21. All terms of this
Agreement shall apply to any such Lending Installation and the Loans and any Notes issued 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
13, designate replacement or additional Lending Installations through which Loans will be made
by it and for whose account Loan payments are to be made.



     2.22. 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 (i) in the case of a Lender, the proceeds
of a Loan or (ii) 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 (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and, thereafter, the interest
rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.



     2.23. Market Disruption. Notwithstanding the satisfaction of all conditions referred
to in Article 2 and Article 4 with respect to any Advance to be made in any Agreed
Currency other than Dollars, if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic conditions or currency
exchange rates or exchange controls which would in the reasonable opinion of the Administrative
Agent or the Required Lenders make it impracticable for the Eurocurrency Loans comprising such
Advance to be denominated in the Agreed Currency specified by the Borrower, then the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders, and such Loans shall not
be denominated in such Agreed Currency but shall, except as otherwise set forth in Section
2.14, be made on such Borrowing Date in Dollars, in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related Borrowing Notice or
Conversion/Continuation Notice, as the case may be, as Floating Rate Loans, unless the Borrower
notifies the Administrative Agent at least one Business Day before such date that (i) it



33









 







elects not to borrow on such date or (ii) it elects to borrow on such date in a different
Agreed Currency, as the case may be, in which the denomination of such Loans would in the opinion
of the Administrative Agent and the Required Lenders be practicable and in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice or Conversion/Continuation Notice, as the case may be.



     2.24. Judgment Currency. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable
herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could purchase the specified
currency with such other currency at the Administrative Agent’s main Chicago office on the Business
Day preceding that on which final, non appealable judgment is given. The obligations of the
Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the Administrative Agent
(as the case may be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the Borrower agrees, to the
fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due
to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b)
any amounts shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 11.2, such Lender or the
Administrative Agent, as the case may be, agrees to remit such excess to the Borrower.



     2.25. Replacement of Lender. If the Borrower is required pursuant to Section
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender’s
obligation to make or continue, or to convert Floating Rate Advances into, Eurocurrency Advances
shall be suspended pursuant to Section 3.3 or if any Lender shall have failed to fund its
Pro Rata Share of any Advance requested by the Borrower or to fund a Revolving Loan in order to
repay a Swing Line Loan which such Lender is obligated to fund under the terms of this Agreement or
if any Lender has failed to consent to a waiver or amendment hereto which has otherwise been
consented to by the Required Lenders or would have been approved had such Lender voted for such
waiver or amendment (any such Lender being referred to herein as an “Affected Lender”),
then the Borrower may elect, if such amounts continue to be charged or such suspension is still
effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no
Default or Unmatured Default shall have occurred and be continuing at the time of such replacement,
and provided further that, concurrently with such replacement, (i) another bank or other entity
which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of
such date, to purchase for cash the Advances and other Obligations due to the Affected Lender
pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for
all purposes under this Agreement and to assume all obligations of the Affected Lender to be



34









 







terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected Lender in same day
funds on the day of such replacement (A) all interest, fees and other amounts then accrued but
unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Affected Lender under Sections 3.1,
3.2 and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the Loans of such
Affected Lender been prepaid on such date rather than sold to the replacement Lender.



     2.26. Limitation of Interest. The Borrower, the Administrative Agent and the Lenders
intend to strictly comply with all applicable laws, including applicable usury laws. Accordingly,
the provisions of this Section 2.26 shall govern and control over every other provision of
this Agreement or any other Loan Document which conflicts or is inconsistent with this Section
2.26, even if such provision declares that it controls. As used in this Section 2.26,
the term “interest” includes the aggregate of all charges, fees, benefits or other compensation
which constitute interest under applicable law, provided that, to the maximum extent permitted by
applicable law, (a) any non-principal payment shall be characterized as an expense or as
compensation for something other than the use, forbearance or detention of money and not as
interest, and (b) all interest at any time contracted for, reserved, charged or received shall be
amortized, prorated, allocated and spread, in equal parts during the full term of the Obligations.
In no event shall the Borrower or any other Person be obligated to pay, or any Lender have any
right or privilege to reserve, receive or retain, (a) any interest in excess of the maximum amount
of nonusurious interest permitted under the laws of the State of Illinois or the applicable laws
(if any) of the United States or of any other applicable state, or (b) total interest in excess of
the amount which such Lender could lawfully have contracted for, reserved, received, retained or
charged had the interest been calculated for the full term of the Obligations at the Highest Lawful
Rate. On each day, if any, that the interest rate (the “Stated Rate”) called for under
this Agreement or any other Loan Document exceeds the Highest Lawful Rate, the rate at which
interest shall accrue shall automatically be fixed by operation of this sentence at the Highest
Lawful Rate for that day, and shall remain fixed at the Highest Lawful Rate for each day thereafter
until the total amount of interest accrued equals the total amount of interest which would have
accrued if there were no such ceiling rate as is imposed by this sentence. Thereafter, interest
shall accrue at the Stated Rate unless and until the Stated Rate again exceeds the Highest Lawful
Rate when the provisions of the immediately preceding sentence shall again automatically operate to
limit the interest accrual rate. The daily interest rates to be used in calculating interest at
the Highest Lawful Rate shall be determined by dividing the applicable Highest Lawful Rate per
annum by the number of days in the calendar year for which such calculation is being made. None of
the terms and provisions contained in this Agreement or in any other Loan Document which directly
or indirectly relate to interest shall ever be construed without reference to this Section
2.21, or be construed to create a contract to pay for the use, forbearance or detention of
money at an interest rate in excess of the Highest Lawful Rate. If the term of any Obligation is
shortened by reason of acceleration of maturity as a result of any Default or by any other cause,
or by reason of any required or permitted prepayment, and if for that (or any other) reason any
Lender at any time, including but not limited to, the stated maturity, is owed or receives (and/or
has received) interest in excess of interest calculated at the Highest Lawful Rate, then and in any
such event all of any such excess interest shall be canceled automatically as of the date of such
acceleration, prepayment or other event which produces the excess, and, if such excess interest has
been paid



35









 







to such Lender, it shall be credited pro tanto against the then-outstanding principal balance
of the Borrower’s obligations to such Lender, effective as of the date or dates when the event
occurs which causes it to be excess interest, until such excess is exhausted or all of such
principal has been fully paid and satisfied, whichever occurs first, and any remaining balance of
such excess shall be promptly refunded to its payor.



ARTICLE 3.

YIELD PROTECTION; TAXES




     3.1. Yield Protection. If, on or after the date of this Agreement, the adoption of
any law or any rule, regulation, policy, guideline or directive by a Governmental Authority, or any
change in the interpretation or administration thereof by any Governmental Authority, central bank
or comparable agency charged with the interpretation or administration thereof, or compliance by
any Lender or applicable Lending Installation or the LC Issuer with any request or directive of any
such Governmental Authority, central bank or comparable agency:




	 	(a)	 	subjects any Lender or any applicable Lending Installation or
the LC Issuer to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender or the LC Issuer in respect
of its Eurocurrency Loans, Facility LCs or participations therein, or
	 
	 	(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 or the LC Issuer (other than
reserves and assessments taken into account in determining the interest rate
applicable to Eurocurrency Advances), or
	 
	 	(c)	 	imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or the LC Issuer
of making, funding or maintaining its Eurocurrency Loans, or of issuing or
participating in Facility LCs, or reduces any amount receivable by any Lender
or any applicable Lending Installation or the LC Issuer in connection with its
Eurocurrency Loans, Facility LCs or participations therein, or requires any
Lender or any applicable Lending Installation or the LC Issuer to make any
payment calculated by reference to the amount of Eurocurrency Loans, Facility
LCs or participations therein held or interest or LC Fees received by it, by an
amount deemed material by such Lender or the LC Issuer as the case may be,




and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending
Installation or the LC Issuer, as the case may be, of making or maintaining its Eurocurrency Loans
or Commitment or of issuing or participating in Facility LCs or to reduce the return received by
such Lender or applicable Lending Installation or the LC Issuer, as the case may be, in connection
with such Eurocurrency Loans, Commitment, Facility LCs or participations therein, then, within 15
days of demand by such Lender, or the LC Issuer, as the case may be, the


36









 






Borrower shall pay such Lender or the LC Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or the LC Issuer, as the case may be, for such increased
cost or reduction in amount received.




     3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC Issuer reasonably
determines the amount of capital required or expected to be maintained by such Lender or the LC
Issuer, any Lending Installation of such Lender or the LC Issuer, or any corporation controlling
such Lender or the LC Issuer is increased as a result of a Change, then, within 15 days of demand
by such Lender or the LC Issuer, the Borrower shall pay such Lender or the LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion of such increased
capital which such Lender or the LC Issuer reasonably determines is attributable to this Agreement,
its Outstanding Credit Exposure or its Commitment to make Loans and issue or participate in
Facility LCs, as the case may be, hereunder (after taking into account such Lender’s or the LC
Issuer’s policies as to capital adequacy). “Change” means (i) any change after the date of
this Agreement in the Risk Based Capital Guidelines or (ii) any adoption of or change in any other
law, rule, regulation, policy, guideline, interpretation, or directive by a Governmental Authority
after the date of this Agreement which affects the amount of capital required or expected to be
maintained by any Lender or the LC Issuer or any Lending Installation or any corporation
controlling any Lender, the LC Issuer or any Lending Installation. “Risk Based Capital
Guidelines” means (i) the risk based capital guidelines in effect in the United States on the
date of this Agreement, including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the July 1988 report
of the Basle Committee on Banking Regulation and Supervisory Practices Entitled “International
Convergence of Capital Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.



     3.3. Availability of Types of Advances. If any Lender determines that maintenance of
its Eurocurrency Loans at a suitable Lending Installation would violate any applicable law, rule,
regulation or directive of a Governmental Authority or if the Required Lenders determine that (i)
deposits of a type, currency and maturity appropriate to match fund Eurocurrency Advances are not
available or (ii) the interest rate applicable to Eurocurrency Advances does not accurately reflect
the cost of making or maintaining Eurocurrency Advances, then the Administrative Agent shall
suspend the availability of Eurocurrency Advances and require any affected Eurocurrency Advances to
be repaid or converted to Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 3.4.



     3.4. Funding Indemnification. If any payment of a Eurocurrency 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 Eurocurrency 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, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such Eurocurrency Advance.



     3.5. Taxes.



37









 





          3.5.1. No Offset for Taxes. All payments by the Borrower to or for the account of any
Lender, the LC Issuer or the Administrative Agent hereunder or under any Note or Facility LC
Application 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, the IC Issuer or the Administrative Agent, (a) 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 3.5) such Lender, the LC Issuer 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, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in accordance with applicable
law and (d) 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.




          3.5.2. Payment of Other Taxes. 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 under any Note or Facility LC
Application or from the execution or delivery of, or otherwise with respect to, this Agreement or
any Note or Facility LC Application (“Other Taxes”).




          3.5.3. Tax Indemnity. The Borrower hereby agrees to indemnify the Administrative
Agent, the LC Issuer and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section
3.5) paid by the Administrative Agent, the LC Issuer or such Lender as a result of its
Commitment, any Loans made by it hereunder, 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, the LC Issuer or such Lender makes demand therefor pursuant to
Section 3.6.




          3.5.4. Non-U.S. Lenders. 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 each of 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 without limitation any change in treaty, law or regulation) has occurred
prior to the date on which any




38









 







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.




          3.5.5. Exception to Tax Indemnity. For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to Section 3.5.4, 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 3.5 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 Section 3.5.4, above, 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.




          3.5.6. Additional Documentation. Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or any Note 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.




          3.5.7. Administrative Agent Indemnification. 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 3.5.7 shall survive the payment of the Obligations and termination of this
Agreement.




     3.6. Alternate Lending Installations; Lender Statements; Survival of Indemnity. To
the extent reasonably possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of the Borrower to such Lender under
Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurocurrency
Advances under Section 3.3, so long as such designation is not, in the judgment of such
Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such
Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any,
under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall
set forth in reasonable detail the calculations upon which such



39









 







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 Eurocurrency Loan shall be calculated as though each Lender funded its Eurocurrency Loan
through the purchase of a deposit of the type, currency and maturity corresponding to the deposit
used as a reference in determining the Eurocurrency 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, 3.2, 3.4
and 3.5 shall survive payment of the Obligations and termination of this Agreement.



ARTICLE 4.

CONDITIONS PRECEDENT




     4.1. Initial Credit Extension. The Lenders shall not be required to make the initial
Credit Extension hereunder unless the Borrower has furnished to the Administrative Agent with
sufficient copies for the Lenders:



          (a) Copies of the certificate of incorporation (or analogous organizational document(s)) of
each of the Borrower and each Guarantor, together with all amendments, and a certificate of good
standing, each certified by the appropriate governmental officer in its jurisdiction of
incorporation;




          (b) Copies, certified by the Secretary or Assistant Secretary of each of the Borrower and each
Guarantor, of its respective bylaws and of its Board of Directors’ resolutions and of resolutions
or actions of any other body authorizing the execution of the Loan Documents to which the Borrower
or such Guarantor (as applicable) is a party (or analogous documents);




          (c) An incumbency certificate, executed by the Secretary or Assistant Secretary of each of the
Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the
Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the
Loan Documents to which the Borrower is a party, 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 written opinion of the Borrower’s and Guarantors’ counsel, addressed to the Lenders, in
substantially the form of Exhibit A;




          (e) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the
initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing;




          (f) Any Notes requested by a Lender pursuant to Section 2.16 payable to the order of
each such requesting Lender;




          (g) Written money transfer instructions, in substantially the form of Exhibit D,
addressed to the Administrative Agent and signed by an Authorized Officer, together with such other
related money transfer authorizations as the Administrative Agent may have reasonably requested;




40









 








          (h) If the initial Credit Extension will be the issuance of a Facility LC, a properly
completed Facility LC Application;




          (i) The insurance certificate described in Section 5.19;




          (j) The Administrative Agent shall have determined that (a) since December 2, 2006, there has
been no material adverse change or disruption in primary or secondary loan syndication markets,
financial markets or in capital markets generally that would be likely to impair materially
syndication of the Loans hereunder and (b) the Borrower has fully cooperated with the
Administrative Agent’s syndication efforts including, without limitation, by providing the
Administrative Agent with information regarding the Borrower’s operations and prospects and such
other information as the Administrative Agent reasonably deems necessary to successfully syndicate
the Loans hereunder;




          (k) Evidence that (i) the Borrower shall have paid in full all principal of and interest
accrued on the outstanding loans under the Existing Credit Agreement and all fees, expenses and
other amounts owing by the Borrower thereunder and (ii) the Commitments (as defined in the Existing
Credit Agreement) have terminated; and




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




     4.2. Each Credit Extension. The Lenders shall not (except as otherwise set forth in
Section 2.5.4 with respect to Revolving Loans for the purpose of repaying Swing Line Loans)
be required to make any Credit Extension unless on the applicable Credit Extension Date:



          (a) There exists no Default or Unmatured Default;




          (b) The representations and warranties contained in Article 5 (exclusive of Section
5.5) are true and correct as of such Credit Extension 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; and




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




          (d) Each Borrowing Notice, Swing Line Borrowing Notice or request for issuance of a Facility
LC, as the case may be, with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower and each Guarantor that the conditions contained in
Sections 4.2(a) and 4.2(b) have been satisfied. Any Lender may require a duly
completed compliance certificate confirming the foregoing in substantially the form of Exhibit
B as a condition to making a Credit Extension.




ARTICLE 5.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Lenders that:



41









 





     5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, limited liability company or limited partnership (or, in the case of Foreign
Subsidiaries, similar type of Person), duly and properly incorporated or organized, as the case may
be, validly existing and in good standing under the laws of its jurisdiction of incorporation or
organization. Each of the Borrower and its Subsidiaries is qualified to do business in, and is in
good standing in, every jurisdiction were such qualification is required, except where the failure
to be so qualified or in good standing could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.



     5.2. Authorization and Validity. The Borrower has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and the Loan Documents to
which the Borrower is a party constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally.



     5.3. No Conflict; Government Consent. Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries or (ii)
the Borrower’s or any Subsidiary’s articles or certificate of incorporation, bylaws or other
applicable organizational documents, or (iii) the provisions of any indenture or material
instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject,
or by which it, or its Property, is bound, or conflict with or constitute a default thereunder
(other than violations or defaults that could not reasonably be expected to have a Material Adverse
Effect), or result in, or require, the creation or imposition of any Lien in, of or on the Property
of the Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has not been obtained
by the Borrower or any of its Subsidiaries, is required to be obtained by the Borrower or any of
its Subsidiaries in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the payment and performance by the Borrower of the Obligations or
the legality, validity, binding effect or enforceability of any of the Loan Documents.



     5.4. Financial Statements. The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, shareholders’ equity and cash flows as of and
for the fiscal year ended December 2, 2006, reported on by its independent public accountants.
Such financial statements present fairly, in all material respects, the consolidated financial
condition and results of operations and cash flows of the Borrower and its Subsidiaries as of such
dates and for such periods in accordance with GAAP consistently applied.



42









 





     5.5. Material Adverse Change. Since December 2, 2006 there has been no change in the
business, Property or condition (financial or otherwise) of the Borrower and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.



     5.6. Taxes. The Borrower and its Subsidiaries have filed all United States federal
tax returns and all other material tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP consistently applied and as to which
no Lien exists. The United States income tax returns of the Borrower and its Subsidiaries have
been audited by the Internal Revenue Service through the fiscal year ended December 3, 2005. No
tax Liens have been filed and no material claims are being asserted with respect to any such taxes.
The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of
any taxes or other governmental charges are adequate.



     5.7. Litigation and Contingent Obligations. Except as disclosed in the Borrower’s
Annual Report on Form 10-K for the fiscal year ended December 2, 2006, and in Schedule 5.7,
there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or,
to the knowledge of any of their officers, threatened against or affecting the Borrower or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse Effect or which
seeks to prevent, enjoin or delay the making of any Credit Extensions. Other than any liability
incident to any litigation, arbitration or proceeding which (i) could not reasonably be expected to
have a Material Adverse Effect or (ii) is set forth on Schedule 5.7, the Borrower has no
material Contingent Obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.



     5.8. Subsidiaries. Schedule 1 contains an accurate list of all Subsidiaries
of the Borrower as of the date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other ownership interests
owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital
stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued and are fully paid
and non assessable. The Domestic Subsidiaries having total assets of not less than 95% of the
total assets of all Domestic Subsidiaries are Guarantors.



     5.9. ERISA. At December 1, 2007, the Unfunded Liabilities of all Single Employer
Plans did not in the aggregate exceed $30,000,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability to
Multiemployer Plans which could reasonably be expected to have a Material Adverse Effect. Each
Plan complies in all material respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower nor any other member
of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to terminate any Plan, and each Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service to be so qualified.



43









 





     5.10. Accuracy of Information. No written information, exhibit or report furnished by
the Borrower or any of its Subsidiaries to the Administrative Agent or to any Lender in connection
with the negotiation of, or compliance with, the Loan Documents contained any material misstatement
of fact or omitted to state a material fact necessary to make the statements contained therein not
misleading (it being understood that with respect to projections, such projections are good faith
estimates based on assumptions believed to be reasonable by the Borrower at the time of delivery of
such projections to the Administrative Agent and the Lenders and that no assurances can be given
that the results set forth in the projections will actually be obtained).



     5.11. [Reserved.]



     5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a party to any
agreement or instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary
is in default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default could reasonably be
expected to have a Material Adverse Effect or (ii) any Material Indebtedness Agreement.



     5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material Adverse
Effect.



     5.14. Ownership of Properties. Except as set forth on Schedule 2, on the date
of this Agreement, the Borrower and its Subsidiaries will have good title, free of all Liens other
than those permitted by Section 6.15, to all material Property and assets reflected in the
Borrower’s most recent consolidated financial statements provided to the Administrative Agent as
owned by the Borrower and its Subsidiaries, other than defects in title that could not reasonably
be expected to have a Material Adverse Effect.



     5.15. Prohibited Transactions. Neither the execution of this Agreement nor the making
of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.



     5.16. Environmental Matters. In the ordinary course of its business, the officers of
the Borrower consider and evaluate the effect of Environmental Laws upon in the operation of the
Borrower’s and each of the Borrower’s Subsidiary’s businesses and periodically evaluate compliance
by Borrower and each Subsidiary with all applicable Environmental Laws. On the basis of such
consideration and evaluation, and taking into account environmental insurance coverage obtained by
the Borrower, Borrower has concluded that Environmental Laws cannot reasonably be expected to have
a Material Adverse Effect. Except as disclosed in Schedule 5.16 and except with respect to
any other matters that, individually or in the aggregate, and taking into account environmental
insurance coverage obtained by the Borrower, could not reasonably be



44









 







expected to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply in any material respect with any Environmental Law or to
obtain, maintain or comply with any material permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received
written notice of any claim with respect to any Environmental Liability, (iv) has received written
notice that any of its operations are not in material compliance with the requirements of
applicable Environmental Laws or are the subject of any Federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any Hazardous Material or (v)
knows of any basis for any material Environmental Liability not covered by environmental insurance
benefiting the Borrower.



     5.17. 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, as amended.



     5.18. Post Retirement Benefits. The present value of the expected cost of post
retirement medical and insurance benefits payable by the Borrower and its Subsidiaries to its
employees and former employees, as determined in accordance with GAAP, does not exceed $15,000,000,
except for the amount of any post-retirement medical and insurance benefit obligations assumed by
the Borrower or one of its Subsidiaries in connection with acquisitions permitted under this
Agreement which, when aggregated with the other post-retirement medical and insurance benefit
obligations to which the Borrower and its Subsidiaries are subject, could not reasonably be
expected to have a Material Adverse Effect.



     5.19. Insurance. The Borrower will insure and keep insured, and will cause each of
its Subsidiaries to insure and keep insured, with good and responsible insurance companies, all
material insurable Property owned by it of a character and to the extent usually insured (subject
to self insured retentions and deductibles) in accordance with reasonable business practices as
determined in good faith by management of the Borrower. To the extent usually insured against
(subject to self-insured retentions and deductibles) in accordance with reasonable business
practices as determined in good faith by management of the Borrower, the Borrower will also insure,
and cause each of its Subsidiaries to insure other hazards and risks (including employers’ and
public and product liability risks) with good and responsible insurance companies. The certificate
signed by the Chief Executive Officer or Chief Financial Officer of the Borrower, that attests to
the existence of, and summarizes, the property and casualty insurance program carried by the
Borrower with respect to itself and its Subsidiaries and that has been furnished by the Borrower to
the Administrative Agent and the Lenders, is complete and accurate in all material respects. This
summary includes the insurer’s or insurers’ name(s), policy number(s), expiration date(s),
amount(s) of coverage, type(s) of coverage, and deductibles. This summary also includes similar
information, and describes any reserves, relating to any self insurance program that is in effect.



ARTICLE 6.

COVENANTS




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



45









 





     6.1. Financial Reporting. The Borrower will, and will cause each of its Subsidiaries
to, maintain books and records including a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial statements in
accordance with GAAP, and the Borrower will furnish to the Lenders:



          (a) Within 90 days after the close of each of its fiscal years, (or such lesser number of days
within which the Borrower shall be required to file (or under the SEC’s Rule 12b-25 or any
successor shall be deemed to have timely filed) its Annual Report on Form 10-K for such fiscal year
with the SEC), the audited consolidated balance sheet and related statements of income,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for
such year, setting forth in each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all reported on by independent public
accountants of recognized national standing (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such audit) and certified
by the Chief Financial Officer to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the Borrower
and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied.




          (b) Within 45 days after the close of the first three quarterly periods of each of its fiscal
years (or such lesser number of days within which the Borrower shall be required to file (or under
the SEC’s Rule 12b-25 or any successor shall be deemed to have timely filed) its Quarterly Report
on Form 10-Q for such fiscal quarter with the SEC), the unaudited consolidated balance sheet and
related statements of income, shareholders’ equity and cash flows of the Borrower and its
consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion
of such fiscal year, setting forth in each case in comparative form the figures for (or, in the
case of the balance sheet, as of the end of) the same period of the previous fiscal year, all
certified by the Chief Financial Officer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes.




          (c) As soon as available, but in any event within 90 days after the beginning of each fiscal
year of the Borrower, a copy of the plan and forecast (including a projected consolidated balance
sheet, income statement and funds flow statement) of the Borrower for such fiscal year.




          (d) Together with the financial statements required under Sections 6.1(a) and
(b), a compliance certificate in substantially the form of Exhibit B signed by its
Chief Financial Officer showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.




          (e) As soon as possible and in any event within 10 Business Days after the Borrower knows that
any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.




46









 








          (f) As soon as possible and in any event within 10 Business Days after receipt by the
Borrower, a copy of (i) any written notice or claim from a Governmental Authority to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other Person of any Hazardous Materials
into the environment, (ii) any written notice alleging any violation of any federal, state or local
Environmental Law by the Borrower or any of its Subsidiaries, and (iii) any notice that Borrower or
any Subsidiary is the subject of an investigation by any governmental or quasi-governmental
authority relating to the use, disposal or treatment of any Hazardous Material or compliance by
Borrower or any Subsidiary with any applicable Environmental Law.




          (g) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all
financial statements, reports and proxy statements so furnished.




          (h) Promptly (i) after the filing thereof, copies of all periodic and other reports, periodic
and other certifications of the Chief Executive Officer and Chief Financial Officer of the
Borrower, registration statements and other publicly available materials filed by the Borrower or
any of its Subsidiaries with the SEC, or any Governmental Authority succeeding to any or all of the
functions of the SEC, or with any national securities exchange (other than exhibits to any of the
foregoing which are too voluminous to furnish and which are made available by the Borrower or any
of its Subsidiaries on EDGAR Online or such Person’s website and any registration statement on Form
S-8 or its equivalent) and (ii) after the distribution thereof, copies of all financial statements,
reports, proxy statements and other materials distributed by the Borrower to its shareholders
generally.




          (i) Promptly following receipt thereof, a copy of any exception reports provided by the
Borrower’s public accountants.




          (j) Such other information (including non financial information) as the Administrative Agent
or any Lender may from time to time reasonably request.



As to any information contained in materials furnished pursuant to Section 6.1(h), the
Borrower shall not be separately required to furnish such information under Section 6.1(a)
or (b), but the foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in Section 6.1(a) and (b) at the
times specified therein. Documents required to be delivered pursuant to Section 6.1(a),
(b), (g), and (h) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date on which the Borrower posts such documents, or
provides a link thereto on EDGAR Online, the Borrower’s website or another website;
provided that: (i) if any Lender so requests, the Borrower shall deliver paper copies of
such documents to such Lender until a written request to cease delivering paper copies is given by
the Lender and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the
Lenders of the posting of any such documents.




     6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use the
proceeds of the Credit Extensions to repay existing Indebtedness and for general corporate purposes
and for working capital purposes. The Borrower will not, nor will it permit any



47









 







Subsidiary to, use any of the proceeds of the Advances to purchase or carry any “margin stock”
(as defined in Regulation U) in violation of Regulation U.



     6.3. Notice of Default. The Borrower will, and will cause each Subsidiary to, give
prompt notice in writing to the Lenders of the occurrence of any Default or Unmatured Default and
of any other development, financial or otherwise, which could reasonably be expected to have a
Material Adverse Effect.



     6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary to, carry
on and conduct its business in substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted and do all things necessary to remain duly incorporated
or organized, validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation in its jurisdiction of incorporation or organization, as the
case may be, and maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted except, in each case, to the extent that a failure to do so could
not reasonably be expected to have a Material Adverse Effect.



     6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely file
complete and correct in all material respects United States federal and applicable material
foreign, state and local tax returns required by law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property, except those which are
being contested in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with GAAP consistently applied.



     6.6. Insurance. The Borrower will, and will cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on all their Property in such amounts
(subject to self-insured retentions and deductibles) and covering such risks (including employers’
and public and product liability risks) as are consistent with sound business practice, and the
Borrower will furnish to the Administrative Agent upon request full information as to the insurance
carried.



     6.7. Compliance with Laws. The Borrower will, and will cause each Subsidiary to,
comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards
to which it may be subject including, without limitation, all Environmental Laws; provided,
however, that neither the Borrower nor any Subsidiary shall be required to comply with any such
law, regulation, ordinance or order if (x) it shall be contesting such law, regulation, ordinance
or order in good faith by appropriate proceedings and reserves in conformity with GAAP have been
provided therefore on the books of the Borrower or such Subsidiary, as the case may be, or (y) the
failure to comply therewith is not reasonably expected to have, in the aggregate, a Material
Adverse Effect.



     6.8. Maintenance of Properties. Except to the extent that a failure to do so could
not reasonably be expected to have a Material Adverse Effect, the Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and keep its Property in
good repair, working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted at
all times; provided, however, that nothing in this Section 6.8 shall prevent the



48









 







Borrower or a Subsidiary from discontinuing the operation or maintenance of any such
Properties if such discontinuance is, in the reasonable judgment of the Borrower, desirable in the
conduct of its business or the business of its Subsidiary.



     6.9. Inspection. The Borrower will, and will cause each Subsidiary to, permit the
Administrative Agent and the Lenders, by their respective representatives and Administrative
Agents, to inspect any of the Property, books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and
each Subsidiary with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Administrative Agent or any Lender may designate. The
Borrower shall not be liable under Section 9.6.1 hereof for the cost of any action taken
solely under the authority of this Section unless such action has been taken upon the occurrence
and during the continuation of any Default.



     6.10. Dividends. The Borrower will not, nor will it permit any Subsidiary to, declare
or pay any dividends or make any distributions on its capital stock (other than dividends payable
in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital
stock at any time outstanding or effect any transaction that has a substantially similar effect,
except that (i) any Subsidiary may declare and pay dividends or make distributions ratably to the
holders of its Equity Interests, (ii) the Borrower may declare and pay dividends on its capital
stock provided that no Default or Unmatured Default shall exist before or after giving effect to
such dividends or be created as a result thereof; (iii) the Borrower or any Subsidiary may declare
and pay dividends to a partner in any partnership or joint venture as permitted under Section
6.14; and (iv) pursuant to a open-market stock repurchase program approved in advance by its
Board of Directors, the Borrower may repurchase Common Stock in an aggregate amount which could not
reasonably be expected to cause a Material Adverse Effect.



     6.11. Secured Indebtedness. The aggregate amount of all Secured Indebtedness of
Borrower and all Subsidiaries shall not equal or exceed at any time during the term of this
Agreement, 30% of Consolidated Net Worth.



     6.12. Merger. The Borrower will not, nor will it permit any Subsidiary to, merge or
consolidate with or into any other Person, except:



          (a) a merger or consolidation of a Domestic Subsidiary or a Foreign Subsidiary with the
Borrower or with a Domestic Subsidiary, or a merger or consolidation of a Foreign Subsidiary with a
Foreign Subsidiary;




          (b) a merger or consolidation of a Domestic Subsidiary (or a transfer of assets contained
therein) with a Foreign Subsidiary; provided, that the total assets of all Domestic Subsidiaries
which are merged into (or whose assets are transferred to) Foreign Subsidiaries at any time during
the term of this Agreement shall not exceed 30% of the total assets of the Borrower and its
Subsidiaries determined on a consolidated basis on the date of such merger or transfer; or




49









 








          (c) A merger or consolidation of a Domestic Subsidiary or Foreign Subsidiary for the purpose
of effecting a transaction described in Section 6.14(f).




     6.13. Sale of Assets. The Borrower will not, nor will it permit any Subsidiary to,
lease, sell or otherwise dispose of its Property to any other Person, except:



          (a) Sales of inventory in the ordinary course of business, and dispositions of obsolete,
worn-out or other assets no longer used or useful in the business of the Borrower and its
Subsidiaries; or




          (b) Leases, sales or other dispositions of its Property that, together with all other Property
of the Borrower and its Subsidiaries previously leased, sold or disposed of (other than inventory
in the ordinary course of business) as permitted by this Section, do not constitute a Substantial
Portion of the Property of the Borrower and its Subsidiaries, other than dispositions of unwanted
assets that were acquired in connection with an acquisition, provided such disposition (i) is
completed on fair and reasonable terms no less favorable to the Borrower or a Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length transaction and (ii) occurs
within a reasonable period of time after completion of such acquisition.




     6.14. Investments and Acquisitions. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:



          (a) Cash Equivalent Investments;




          (b) Existing Investments in Subsidiaries and other Investments in existence on the date hereof
and described in Schedule 1;




          (c) ownership of stock, obligations or securities received in settlement of debts (created in
the ordinary course of business) owing to the Borrower or any Subsidiary;




          (d) endorsement of negotiable instruments for collection in the ordinary course of business;




          (e) loans and advances to (i) non-executive employees in the ordinary course of business for
travel, relocation and similar purposes and (ii) executive employees in the ordinary course of
business for travel;




          (f) acquisitions of all or any substantial part of the assets or business of or investments in
any other joint venture, corporation, partnership or limited liability company or division thereof
engaged in a line of business reasonably related or complementary to that of the Borrower and its
Subsidiaries, or of a majority of the Voting Stock of such a Person, or of equity interests in any
joint venture, corporation, limited liability company or partnership which does not become a
Subsidiary as a result of such acquisition but is engaged (or promptly after such acquisition will
be engaged) in a line of business reasonably related or complimentary to that of




50









 







the Borrower and its Subsidiaries, provided that (i) no Default exists or would exist after
giving effect to such acquisition and (ii) the Board of Directors or other governing body of such
joint venture, limited liability company, corporation or partnership whose Property, or Voting
Stock or other interests in which, are being so acquired has approved the terms of such
acquisition;




          (g) liabilities in respect of letters of credit securing Permitted Industrial Revenue Bond
Liabilities and Facility LCs;




          (h) Investments in a Person that, prior to the making of such Investment, is a Subsidiary and
a Guarantor; or




          (i) investments not otherwise permitted under this Section 6.14 in an aggregate amount
not exceeding $50,000,000 at any time during the term of this Agreement.




     6.15. Liens. The Borrower will not, nor will it permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries, except:



          (a) Liens for taxes, assessments or governmental charges or levies on its Property if the same
shall not at the time be delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which adequate reserves in
accordance with GAAP consistently applied shall have been set aside on its books;




          (b) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar Liens arising in the ordinary course of business which secure payment of obligations not
more than 60 days past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;




          (c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment
insurance, old age pensions, or other social security or retirement benefits, or similar
legislation;




          (d) Utility easements, building restrictions and such other encumbrances or charges against or
restrictions on real property as are of a nature commonly existing with respect to properties of a
similar character and which do not in any material way affect the marketability of the same or
materially interfere with the use thereof in the business of the Borrower or its Subsidiaries;




          (e) Liens existing on the date hereof and described in Schedule 2;




          (f) Liens arising out of judgments or awards against the Borrower or any Subsidiary, or in
connection with surety or appeal bonds in connection with bonding such judgments or awards, the
time for appeal from which or petition for rehearing of which shall not have expired or with
respect to which the Borrower or such Subsidiary shall be prosecuting an appeal or proceeding for
review, and with respect to which Borrower shall have obtained a stay of execution pending such
appeal of proceeding for review; provided that the aggregate amount of liabilities (including
interest and penalties, if any) of the Borrower and its Subsidiaries secured by such Liens shall
not exceed $20,000,000 at any one time;




51









 








          (g) Liens on Property of a Subsidiary to secure obligations of such Subsidiary to the Borrower
or to another Subsidiary so long as the obligation to secure is not related to any obligation
(other than obligations hereunder) of the Borrower or such other Subsidiary to any other Person;




          (h) Any extension, renewal or replacement (or successive extension, renewals or replacements)
in whole or in part of any Lien referred to in the foregoing sections (a) through (g), inclusive,
provided that the principal amount of the Indebtedness or other obligations secured thereby shall
not exceed the principal amount of Indebtedness or other obligations so secured at the time of such
extension, renewal or replacement and that such extension, renewal or replacement shall be limited
to the Property which was subject to the Lien so extended, renewed or replaced;




          (i) Liens securing Permitted Industrial Revenue Bond Liabilities, provided that any such Lien
shall apply only to the real property and machinery and equipment comprising the manufacturing
facility financed, in whole or in party, with the proceeds of the applicable Permitted Industrial
Revenue Bond;




          (j) Liens on the assets of Persons which become Subsidiaries after the date of this Agreement;
provided that such Liens existed at the time the respective Person became a Subsidiary and were not
created in anticipation thereof; or




          (k) Liens securing Secured Indebtedness.




     6.16. Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including, without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate except in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms length transaction;
provided, however, that the foregoing shall not apply to transactions exclusively between and among
the Borrower and its Subsidiaries.



     6.17. Letters of Credit and Third-Party Bonds. The Borrower will not, nor will it
permit any Subsidiary to, become liable in respect of any Letter of Credit or in respect of any
third-party bond obtained for purposes of assuring payment or performance of an obligation of the
Borrower or a Subsidiary other than (a) Permitted Industrial Revenue Bond Liabilities, (b) Facility
LCs and (c) (i) other Letters of Credit, (ii) similar bank guarantees or assurances and (iii)
third-party bond obligations assuring payment or performance of obligations of the Borrower and its
Subsidiaries entered into or incurred in the ordinary course of business; provided that the
aggregate liability of the Borrower and its Subsidiaries in respect of Letters of Credit, similar
bank guarantees or assurances, third-party bonds and other liabilities incurred in reliance on
clause (c) and outstanding at any one time shall not exceed $75,000,000.



     6.18. Financial Covenants.



          6.18.1. Interest Coverage Ratio. The Borrower will not permit the ratio of (i)
Consolidated EBIT to (ii) Consolidated Net Interest Expense to be less than 3.0 to 1.0




52









 







determined as of the end of each of its fiscal quarters for the then most recently ended
period of four consecutive fiscal quarters.




          6.18.2. Leverage Ratio. The Borrower will not permit its Leverage Ratio to be greater
than 3.0 to 1.0 determined as the end of each of its fiscal quarters for the then most recently
ended period of four consecutive fiscal quarters.




          6.18.3. Adjustments to Financial Ratios. In computing ratios and amounts for purposes
of this Section 6.18, any asset impairment adjustment required by Statement of Financial
Accounting Standards # 141 or #142 (SFAS #141 or SFAS #142) or any adjustment to pension assets
required by Statement of Financial Accounting Standards # 87 (or interpretations or modifications
thereof) resulting in a charge to earnings or a write-down of shareholders’ equity will be added
back, in an amount not to exceed $124,000,000, for purposes of determining whether the Borrower has
breached such financial covenants.




     6.19. Existence; Subsidiary Guarantees. The Borrower shall, and shall cause each of
its Subsidiaries to, preserve and maintain its corporate existence; provided that nothing in this
Section shall prevent mergers and consolidations permitted by Section 6.12 hereof or the
discontinuation of the corporate existence of any Subsidiary if discontinuance of such Subsidiary
is desirable in the conduct of the Borrower’s business; provided that the aggregate assets of all
Subsidiaries whose corporate existence is discontinued during any fiscal year may not exceed 20% of
the consolidated assets of the Borrower and its Subsidiaries (determined in accordance with GAAP)
as of the end of the immediately preceding fiscal year. As a condition to establishing or
acquiring any Subsidiary and within 45 days after a corporation, joint venture, partnership or
limited liability company otherwise becomes a Subsidiary, unless the Required Lenders otherwise
agree, the Borrower shall (i) notify Administrative Agent of the creation, acquisition or
establishment of each Subsidiary; (ii) cause such Domestic Subsidiary to execute a Subsidiary
Guarantee Agreement unless such Domestic Subsidiary shall not be required to become a Guarantor
pursuant to the last sentence in Section 5.8; (iii) cause such Domestic Subsidiary, if so
required, to deliver documentation similar to that described in Sections 4.1(a) through
(d) relating to the authorization for, execution and delivery of, and validity of such
Subsidiary’s obligations as a Guarantor under the Subsidiary Guaranty Agreement, in form and
substance reasonably satisfactory to Administrative Agent; and (iv) if necessary, deliver an
updated Schedule 1 to reflect the new Subsidiary.



     6.20. Change in Fiscal Year. Borrower will not change its fiscal year from its
present basis without the prior written consent of Administrative Agent.



ARTICLE 7.

DEFAULTS




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



     7.1. 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 Credit Extension, or any certificate or information



53









 







delivered in connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.



     7.2. Nonpayment of principal of any Loan when due, nonpayment of any Reimbursement Obligation
within one Business Day after the same becomes due, or nonpayment of interest upon any Loan or of
any commitment fee, LC Fee or other obligations under any of the Loan Documents within five days
after the same becomes due.



     7.3. The breach by the Borrower of any of the terms or provisions of Sections 6.2,
6.3, 6.4, 6.10, 6.11, 6.12, 6.13, 6.14,
6.15, 6.16, 6.17, 6.18.1, 6.18.2, or 6.20.



     7.4. The breach by the Borrower (other than a breach which constitutes a Default under another
Section of this Article 7) of any of the terms or provisions of this Agreement which is not
remedied within thirty days after written notice from the Administrative Agent unless such default,
in the reasonable discretion of the Administrative Agent, materially, adversely and imminently
affects the ability of the Lenders to collect the Obligations, in which case, such Default shall be
cured within five days after written notice from the Administrative Agent.



     7.5. Any default by the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any Material Indebtedness Agreement, or any other event shall
occur or condition exist, the effect of which default, event or condition is to cause, or to permit
the holder(s) of such Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement to cause, such Material Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be due and
payable or required to be prepaid or repurchased (other than by a regularly scheduled payment)
prior to the stated maturity thereof; or the Borrower or any of its Subsidiaries shall not pay, or
admit in writing its inability to pay, its debts generally as they become due.



     7.6. There shall occur under any Rate Management Transaction, an early termination date (as
provided for in any agreement with respect to such Rate Management Transaction) resulting from (a)
any default under such agreement as to which the Borrower or any Subsidiary is the defaulting party
(as determined in accordance with such agreement); or (b) any termination event (as determined in
accordance with such agreement) as to which the Borrower or any Subsidiary is an affected party
(as defined in said agreement), and in either event, the Rate Management Obligations of the
Borrower or such Subsidiary due and payable as a result thereof is $10,000,000 or more.



     7.7. The Borrower or any of its Subsidiaries shall (a) have an order for relief entered with
respect to it under the Federal bankruptcy laws as now or hereafter in effect, (b) make an
assignment for the benefit of creditors, (c) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (d) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy,
insolvency or



54









 







reorganization or relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (e) take any corporate action to
authorize or effect any of the foregoing actions set forth in this Section 7.7 or (f) fail
to contest in good faith any appointment or proceeding described in Section 7.8.



     7.8. Without the application, approval or consent of the Borrower or any of its Subsidiaries,
a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower
or any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in
Section 7.7(d) shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of 30 consecutive days.



     7.9. 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.



     7.10. The Borrower or any of its Subsidiaries shall fail within 30 days to pay, bond or
otherwise discharge one or more (i) judgments or orders for the payment of money in excess of
$20,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or
(ii) nonmonetary 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.



     7.11. (i) Any Reportable Event shall occur in connection with any Plan; (ii) the Borrower or
any Subsidiary shall file a notice of intent under Title IV of ERISA to terminate a Plan or Plans
having aggregate Unfunded Liabilities of all Single Employer Plans attributable to the Borrower or
any Subsidiary in excess of $10,000,000 (collectively, a “Material Plan”); (iii) any plan
administrator or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan; (iv) a proceeding shall be
instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or (v) a condition shall exist by reason of which the PBGC would be entitled to obtain
a decree adjudicating that any Material Plan must be terminated.



     7.12. Any Change in Control shall occur.



     7.13. The Borrower or any other member of the Controlled Group shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification), could reasonably be expected to have a
Material Adverse Effect.



55









 





     7.14. The Borrower or any other member of the Controlled Group shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other members of the
Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or
being terminated have been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan years of each such Multiemployer Plan immediately preceding the plan
year in which the reorganization or termination occurs by an amount which could reasonably be
expected to have a Material Adverse Effect.



     7.15. The occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of grace therein provided.



     7.16. Any Guaranty is not in full force and effect with respect to all parties thereto, or any
action shall be taken to discontinue or to assert the invalidity or unenforceability of any
Guaranty or any Guarantor shall deny that it has any further liability under any Guaranty to which
it is a party or shall give notice to such effect.



ARTICLE 8.

ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES




     8.1. Acceleration; Termination of Extensions of Facility LCs.



          8.1.1. If any Default in Section 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power of the LC Issuer to
issue Facility LCs shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative Agent, the LC Issuer
or any Lender and the Borrower will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Administrative Agent an amount equal to the LC
Obligations in immediately available funds, which funds shall be held in the Facility LC Collateral
Account at the Administrative Agent’s office at the address specified pursuant to Article
13, in the name of such Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders and in which such Borrower shall have no interest other than
as set forth in this Section 8.1. The Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the LC Issuer, a
security interest in all of the Borrower’s right, title and interest in and to all funds which may
from time to time be on deposit in the Facility LC Collateral Account to secure the prompt and
complete payment and performance of the Obligations. The Administrative Agent will invest any
funds on deposit from time to time in the Facility LC Collateral Account in certificates of deposit
of JPMorgan Chase Bank, National Association having a maturity not exceeding 30 days or as provided
in Section 2.19.12.




          8.1.2. If any other Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may (a) terminate or suspend the obligations of




56









 







the Lenders to make Loans hereunder and the obligation and power of the LC Issuer to issue
Facility LCs, or declare the Obligations to be due and payable, or both, whereupon 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 and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrower to pay, and the Borrower will, forthwith upon such demand and without
any further notice or act, pay to the Administrative Agent an amount equal to the LC Obligations,
which funds shall be deposited in the Facility LC Collateral Account.




          8.1.3. The Administrative Agent may at any time or from time to time while any Default is
continuing and after funds are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Obligations and any other amounts as shall from time to time have become due and
payable by the Borrower to the Lenders or the LC Issuer under the Loan Documents.




          8.1.4. At any time while any Default is continuing, neither the Borrower nor any Person
claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds
held in the Facility LC Collateral Account. After all of the Obligations have been indefeasibly
paid in full and the Aggregate Commitment has been terminated, any funds remaining in the Facility
LC Collateral Account shall be returned by the Administrative Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.




     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
provisions to the Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:



          (a) Extend the final maturity of any Loan, or extend the expiry date of any Facility LC to a
date after the Facility Termination Date or postpone any regularly scheduled payment of principal
of any Loan or forgive all or any portion of the principal amount thereof or any Reimbursement
Obligation related thereto, or reduce the rate or extend the time of payment of interest or fees
thereon or Reimbursement Obligations related thereto;




          (b) Reduce the percentage specified in the definition of Required Lenders;




          (c) Extend the Facility Termination Date or reduce the amount or extend the payment date for,
the mandatory payments required under Section 2.2, or increase the amount of the Aggregate
Commitment (except as expressly provided herein), the Commitment of any Lender hereunder or the
commitment to issue Facility LCs, or permit the Borrower to assign its rights under this Agreement
or release all or substantially all of the Guarantors; or




          (d) Amend this Section 8.2.



In addition, notwithstanding the foregoing, the consent of a Lender to an amendment (or amendment
and restatement) of this Agreement shall not be required if, upon giving effect to


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such amendment (or amendment and restatement), such Lender shall no longer be a party to this
Agreement (as so amended or amended and restated), the Commitment of such Lender shall have
terminated (but such Lender shall continue to be entitled to the benefits of Sections 3.1,
3.5 and 9.6 with respect to facts and circumstances occurring prior to the
effective date of such amendment or amendment and restatement), such Lender shall have no other
commitment or other obligation hereunder and shall have been paid in full all principal, interest
and other amounts owing to it or accrued for its account under this Agreement.



No amendment of any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent, and no amendment of any
provision relating to the LC Issuer, the Swing Line Lender or any Swing Line Loans shall be
effective without the written consent of the LC Issuer or the Swing Line Lender, as the case may
be. The Administrative Agent may waive payment of the fee required under Section 12.3.3
without obtaining the consent of any other party to this Agreement.




     8.3. Preservation of Rights. No delay or omission of the Lenders, the LC Issuer or
the Administrative Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the making of a Credit
Extension notwithstanding the existence of a Default or the inability of the Borrower to satisfy
the conditions precedent to such Credit Extension 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 the Loan Documents 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 the Loan Documents or by law afforded
shall be cumulative and all shall be available to the Administrative Agent, the LC Issuer and the
Lenders until the Obligations have been paid in full.



ARTICLE 9.

GENERAL PROVISIONS




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



     9.2. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuer nor any 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 the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.



     9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Administrative



58









 







Agent, the LC Issuer and the Lenders relating to the subject matter thereof other than those
contained in the fee letter described in Section 10.13 which shall survive and remain in
full force and effect during the term 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
Administrative 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, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the provisions of Sections
9.6, 9.10 and 10.11 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.



          9.6.1. Expenses. The Borrower shall reimburse the Administrative Agent and the
Arranger for all reasonable costs, internal charges and out of pocket expenses (including
reasonable 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 the Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, distribution (including, without limitation, via the internet), review, amendment,
modification, and administration of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent, the Arranger, the LC Issuer and the Lenders for any costs, internal charges
and out of pocket expenses (including reasonable attorneys’ fees and time charges of attorneys for
the Administrative Agent, the Arranger, the LC Issuer and the Lenders, which attorneys may be
employees of the Administrative Agent, the Arranger, the LC Issuer or the Lenders) paid or incurred
by the Administrative Agent, the Arranger, the LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed by the Borrower under
this Section include, without limitation, reasonable costs and expenses incurred in connection with
the Reports described in the following sentence. The Borrower acknowledges that from time to time
JPMorgan Chase Bank, National Association 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 JPMorgan Chase Bank,
National Association from information furnished to it by or on behalf of the Borrower, after
JPMorgan Chase Bank, National Association has exercised its rights of inspection pursuant to this
Agreement. The Administrative Agent shall furnish to the Borrower copies of invoices and billing
records relating to all costs and expenses being reimbursed.




          9.6.2. Indemnification. The Borrower hereby agrees to indemnify the Administrative
Agent, the Arranger, the LC Issuer and each Lender, their respective Affiliates, and each of their
directors, officers and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of litigation or preparation
therefor whether or not the Administrative Agent, the Arranger, the LC Issuer or any




59









 




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 other Loan Documents, the transactions contemplated hereby or
the direct or indirect application or proposed application of the proceeds of any Credit Extension
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; provided, that the Borrower shall not have any obligation to
indemnify the Administrative Agent, the Arranger, the LC Issuer or any Lender hereunder with
respect to any liabilities arising out of legal proceedings commenced against a Lender by another
Lender or its assignee to the extent such proceedings relate solely to disputes arising from
matters not relating to Borrower or any Subsidiary. 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 consistently applied, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Borrower and all its Subsidiaries. In the event that
any Accounting Change (as defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in this Agreement, then the
Borrower and the Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to reflect equitably such Accounting Change with the desired
result that the criteria for evaluating the Borrower’s financial condition shall be the same after
such Accounting Change as if such Accounting Change had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the
Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to
be calculated or construed as if such Accounting Change had not occurred. “Accounting
Change” refers to a change in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC.



     9.9. Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
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 all Loan Documents are declared to be severable.



     9.10. Nonliability of Lenders. The relationship between the Borrower on the one hand
and the Lenders, the LC Issuer and the Administrative Agent on the other hand shall be solely that
of borrower and lender. Neither the Administrative Agent, the Arranger, the LC Issuer nor any
Lender shall have any fiduciary responsibilities to the Borrower. Neither the Administrative
Agent, the Arranger, the LC Issuer nor 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, the



60









 







Arranger, the LC Issuer nor 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 the
Loan Documents, 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 Borrower, the Administrative Agent, the Arranger, the LC Issuer nor any Lender
shall have any liability with respect to, and each of the Borrower, the Administrative Agent, the
Arranger, the LC Issuer and any Lender hereby waives, releases and agrees not to sue for, any
special, indirect, consequential or punitive damages suffered by any other Party in connection
with, arising out of, or in any way related to the Loan Documents 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
(a) to its Affiliates and to other Lenders and their respective Affiliates, (b) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee, (c) to regulatory
officials, (d) to any Person as required by law, regulation, or legal process, (e) to any Person as
required in connection with any legal proceeding to which such Lender is a party, (f) to such
Lender’s direct or indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties and (g) permitted by Section
12.4.



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



     9.13. Disclosure. The Borrower and each Lender hereby acknowledge and agree that
JPMorgan Chase Bank, National Association 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. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.



ARTICLE 10.

THE ADMINISTRATIVE AGENT




     10.1. Appointment; Nature of Relationship. JPMorgan Chase Bank, National Association
is hereby appointed by each of the Lenders as its contractual representative (herein referred to as
the “Administrative Agent”) hereunder and under each other Loan Document, 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 and in the other Loan Documents.
The Administrative Agent agrees to act as such contractual



61









 







representative upon the express conditions contained in this Article 10.
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 or any other Loan Document 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 and the other Loan Documents. 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 and the other Loan Documents. 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
the Loan Documents 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 the Loan Documents to be taken by the
Administrative Agent.



     10.3. General Immunity. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith 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 directors, officers, agents or employees shall be responsible for or have any duty
to ascertain, inquire into, or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of
any of the covenants or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each Lender; (c) the
satisfaction of any condition specified in Article 4, 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 any Loan Document 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. The
Administrative Agent shall have no duty to disclose to the Lenders information that is not required
to be furnished by the Borrower to the Administrative Agent at such time, but is voluntarily
furnished by the Borrower to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).



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     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 and under any other Loan
Document 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 or any other Loan Document 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 and under any other Loan Document 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 Administrative Agent hereunder and under any other Loan Document 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 and under any other Loan Document.



     10.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, 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.



     10.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (a) for any amounts not reimbursed by the Borrower for which
the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (b)
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 the Loan Documents
(including, without limitation, 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 (c) 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
the Loan Documents or any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, 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
the Loan Documents or of any such other documents, provided that (y) 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



63









 







Administrative Agent and (z) any indemnification required pursuant to Section 10.7
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”. In the event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.



     10.10. Rights as a Lender. In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
Document 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 or any other Loan Document,
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.



     10.11. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, the 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 and
the other Loan Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the 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 and the other Loan Documents.



     10.12. Successor Administrative 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. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent, which successor Administrative Agent shall be subject to the approval of the Borrower (not
to be delayed or withheld unreasonably) so long as no Default has occurred and is continuing. If
no successor Administrative Agent shall have been so appointed by the Required Lenders within
thirty days after the resigning Administrative Agent’s giving notice of its intention to resign,
then the resigning Administrative 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



64









 







Agent hereunder. If the Administrative Agent has resigned 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 of the Administrative Agent, the resigning Administrative Agent shall be discharged
from its duties and obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation of an Administrative Agent, the provisions of this Article 10 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 and under the other Loan
Documents. 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. Administrative Agent and Arranger Fees. The Borrower agrees to pay to the
Administrative Agent and the Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Administrative Agent and the Arranger pursuant to that certain letter agreement dated
October 26, 2007 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 directors, officers, Administrative Agents and employees)
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 Articles 9 and 10.



ARTICLE 11.

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 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. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment
made to it upon its Outstanding Credit Exposure (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that
received by any other Lender, such



65









 







Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit
Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share in the benefits of
such collateral ratably in proportion to their respective Pro Rata Shares of the Aggregate
Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.



ARTICLE 12.

BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS




     12.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns permitted hereby, except that (a) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior written consent of each
Lender, (b) any assignment by any Lender must be made in compliance with Section 12.3, and
(c) any transfer by participation must be made in compliance with Section 12.2. Any
attempted assignment or transfer by any party not made in compliance with this Section 12.1
shall be null and void, unless such attempted assignment or transfer is treated as a participation
in accordance with Section 12.2.1. The parties to this Agreement acknowledge that clause
(b) of this Section 12.1 relates only to absolute assignments and this Section 12.1
does not prohibit assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any Note to its trustee in
support of its obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of Section 12.3.
The Administrative Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with Section
12.3; provided, however, that the Administrative Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any
Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.



     12.2. Participations.



          12.2.1. Permitted Participants; Effect. Any Lender may at any time sell to one or
more banks or other entities (“Participants”) with the consent of the Borrower (which shall
not be unreasonably withheld) unless a Default shall occur and is continuing, in which case the
Borrower’s consent shall not be required, participating interests in any Outstanding Credit



66









 






Exposure of such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender’s obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under the Loan Documents.




          12.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect to any Credit Extension or
Commitment in which such Participant has an interest which would require consent of all of the
Lenders pursuant to the terms of Section 8.2 or of any other Loan Document.




          12.2.3. Benefit of Certain Provisions. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided in Section
11.1 with respect to the amount of participating interests sold to each Participant. The
Lenders agree to share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender. The Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and
3.5 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 12.3, provided that (i) a Participant shall not be entitled to receive
any greater payment under Section 3.1, 3.2 or 3.5 than the Lender who sold
the participating interest to such Participant would have received had it retained such interest
for its own account, and (ii) any Participant not incorporated under the laws of the United States
of America or any State thereof agrees to comply with the provisions of Section 3.5 to the
same extent as if it were a Lender.




     12.3. Assignments.



          12.3.1. Permitted Assignments. Any Lender may at any time assign to one or more banks
or other entities (“Purchasers”) all or any part of its rights and obligations under the
Loan Documents. Such assignment shall be substantially in the form of Exhibit C or in such
other form as may be agreed to by the parties thereto. Each such assignment with respect to a
Purchaser which is not a Lender or an Affiliate of a Lender or an Approved Fund shall either be in
an amount equal to the entire applicable Commitment and Loans of the assigning Lender or (unless
each of the Borrower and the Administrative Agent otherwise consents) be in an aggregate amount not
less than $5,000,000. The amount of the assignment shall be based on the Commitment or outstanding
Loans (if the Commitment has been terminated) subject to the



67









 






assignment, determined as of the date of such assignment or as of the “Trade Date,” if the
“Trade Date” is specified in the assignment.




          12.3.2. Consents. The consent of the Borrower shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or an
Approved Fund, provided that the consent of the Borrower shall not be required if a Default has
occurred and is continuing. The consent of the Administrative Agent and the LC Issuer shall be
required prior to any assignment becoming effective. Any consent required under this Section
12.3.2 shall not be unreasonably withheld or delayed.




          12.3.3. Effect; Effective Date. Upon (a) delivery to the Administrative Agent of an
assignment, together with any consents required by Sections 12.3.1 and 12.3.2, and
(ii) payment of a $3,500 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase of the Commitment
and Outstanding Credit Exposure under the applicable assignment agreement constitutes “plan assets”
as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan
Documents will not be “plan assets” under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any other
Loan Document executed by or on behalf of the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents to the same extent as if it were an original party thereto,
and the transferor Lender shall be released with respect to the Commitment and Outstanding Credit
Exposure assigned to such Purchaser without any further consent or action by the Borrower, the
Lenders or the Administrative Agent. In the case of an assignment covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a Lender
hereunder but shall continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the Obligations and
termination of the applicable agreement. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 12.3 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 12.2. Upon the consummation of any assignment
to a Purchaser pursuant to this Section 12.3.3, the transferor Lender, the Administrative
Agent and the Borrower shall, if the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.




          12.3.4. Register. The Administrative Agent, acting solely 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 amounts 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 presumed correct absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms



68









 






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 and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




     12.4. Dissemination of Information. The Borrower authorizes each Lender to disclose
in good faith to any Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents 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 without limitation any information contained in any Reports; provided that
each Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.



     12.5. Tax Treatment. If any interest in any Loan Document 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 3.5.4.



     12.6. Prohibition Regarding Certain Transferees. Notwithstanding any of the
foregoing, no Transferee may be a Person who is engaged (or whose Subsidiaries or Affiliates are
engaged) in a business that competes with a business in which the Borrower or any of its
Subsidiaries or Affiliates are engaged.



ARTICLE 13.

NOTICES




     13.1. Notices. Except as otherwise permitted by Section 2.14 with respect to
borrowing notices and as permitted by Section 6.1, all notices, requests and other
communications to any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a) in the case of the
Borrower or the Administrative Agent, at its address or facsimile number set forth on the signature
pages hereof, (b) in the case of any Lender, at its address or facsimile number set forth below its
signature hereto or (c) in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Administrative Agent and the Borrower
in accordance with the provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (x) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is received, (y) if given by
mail, 3 days after such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (z) if given by any other means, when delivered (or, in the case of
electronic transmission, received) at the address specified in this Section; provided that notices
to the Administrative Agent under Article 2 shall not be effective until received.



     13.2. Change of Address. The Borrower, the Administrative Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to the other parties
hereto.



ARTICLE 14.

COUNTERPARTS




69









 








     This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be effective when it has been executed by the Borrower,
the Administrative Agent, the LC Issuer and the Lenders and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.



ARTICLE 15.

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




     15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO
THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.



     15.2. CONSENT TO JURISDICTION. THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER
AND EACH LENDER HEREBY IRREVOCABLY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER
AND EACH LENDER HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION THEY 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.



     15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER 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 ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.



Signature Pages Follow




70









 





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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	CLARCOR INC.
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	By:
	 	/s/
Bruce A. Klein 
	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	Bruce A. Klein
	 	 
	 	 	 	 	 	 	 	 	Vice President — Finance and 

Chief Financial Officer
	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	840 Crescent Centre Drive

Suite 600

Franklin, Tennessee 37067

Attention: Bruce A. Klein

Telephone: (615) 771-3091

FAX: (615) 771-4065

	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	Commitment

 

$50,000,000	 	Percentage

 

20%	 	 	 	JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, 

Individually as a Lender and as

Administrative Agent, 

Swing Line Lender
and LC Issuer
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	By:
	 	/s/
Betsy Makris 
	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	Betsy Makris

Vice President

	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	6000 East State Street

Rockford, Illinois 61108

Attention: Betsy Makris

Telephone: (815) 394-4620

FAX: (815) 394-1889 
	 	 





Signature Pages of Other Lenders Follows






71









 








Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$40,000,000	 	16%	 	 	 	BANK OF AMERICA, N.A., Individually as a 

Lender and as
Syndication Agent
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Jonathan M. Phillips 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice
President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	231 S. LaSalle Street

Suite/Floor: I11-231-06-46

Chicago, Illinois 60697

	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Attention: Jonathan M. Phillips,
Vice President


Telephone: (312) 828-8997

FAX: (312) 974-0761

	 	 






72









 






Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$40,000,000	 	16%	 	 	 	U.S. BANK, NATIONAL ASSOCIATION,


as Documentation Agent
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Frances Josephic 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice
President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	425
Walnut Street

Suite/Floor: CN-OH-W8

Cincinnati, OH 45202

Attention: Frances Josephic,
Vice President

Telephone: (513) 762-8973

FAX: (513) 632-2068

	 	 






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Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$40,000,000	 	16%
	 	 	 	FIFTH THIRD
BANK, an Ohio Banking Corporation,
as Documentation Agent
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
John K. Perez 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice
President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	424
Church Street, Suite 600

Mail Drop: LITFC6B

Nashville, TN 37219

Attention: John K. Perez, Vice President

Telephone: (615) 687-3043

FAX: (615) 687-3089
	 	 






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Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$25,000,000	 	10%	 	 	 	NATIONAL CITY BANK, 

as Co-Agent
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Michael Leong 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice
President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	1 North Franklin

Suite: 2000

Chicago, Illinois 60606

Attention: Michael Leong,
Vice President

Telephone: (312) 384-4654

FAX: (312) 384-4666

	 	 






75









 







Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$20,000,000	 	8%	 	 	 	THE NORTHERN TRUST COMPANY
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Kanika Agarwal 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Second
Vice President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	50 S. LaSalle Street

Suite/Floor: L-8

Chicago, Illinois 60675

Attention: Kanika Agarwal, Second Vice
    President

Telephone: (312) 557-3172

FAX: (312) 444-7028

	 	 






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Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
	$20,000,000	 	 	8	%	 	 	 	REGIONS BANK
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Daniel Grant 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Senior
Vice President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	315
Deaderick St., 3rd Floor

Nashville, TN 37237

Attention:  Daniel Grant
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Telephone:
(615) 770-4370

FAX:  (615) 748-2812

	 	 






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Signature Page to Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Commitment
 

	 	Percentage
 

	 	 	 	 	 	 
	 	 
		$15,000,000	 	 	 	6	%	 	 	 	CITIZENS BANK OF PENNSYLVANIA
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/
Clifford A. Mull 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice
President 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Attention:  Clifford
A. Mull
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Telephone:
(412) 867-2432

FAX:  (412) 552-6306

	 	 






78









 






PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	APPLICABLE MARGIN/	 	LEVEL I	 	LEVEL II	 	LEVEL III	 	LEVEL IV	 	LEVEL V
	APPLICABLE FEE RATE	 	STATUS	 	STATUS	 	STATUS	 	STATUS	 	STATUS
	Eurocurrency Rate
	 	 	0.30	%	 	 	0.40	%	 	 	0.50	%	 	 	0.625	%	 	 	0.875	%
	Alternate Base Rate
	 	 	-0.25	%	 	 	-0.25	%	 	 	-0.25	%	 	 	-0.25	%	 	 	-0.25	%
	L/C Fee
	 	 	0.30	%	 	 	0.40	%	 	 	0.50	%	 	 	0.625	%	 	 	0.875	%
	Commitment Fee
	 	 	0.07	%	 	 	0.08	%	 	 	0.10	%	 	 	0.125	%	 	 	0.175	%





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




     “Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 6.1 of this Agreement.



     “Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio determined in accordance
with Section 6.18.2 of this Agreement is less than or equal to 1.00 to 1.00.



     “Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Leverage Ratio determined in accordance with Section 6.18.2 of this
Agreement is less than or equal to 1.50 to 1.00.



     “Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Leverage Ratio determined in accordance with Section
6.18.2 of this Agreement is less than or equal to 2.00 to 1.00.



     “Level IV Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II or Level III Status and (ii) the Leverage Ratio determined in accordance with
Section 6.18.2 of this Agreement is less than or equal to 2.50 to 1.00.



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



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



     The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the
foregoing table based on the Borrower’s Status as reflected in the then most recent Financials.
Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be effective three
Business Days after the Administrative Agent has received the applicable Financials. If the
Borrower fails to deliver the Financials to the Administrative Agent at the time required pursuant
to this Agreement, then the Applicable Margin and Applicable Fee Rate shall be the highest
Applicable Margin and Applicable Fee Rate set forth in the foregoing table until three days after
such Financials are so delivered.



79









 





     Notwithstanding the foregoing, Pricing Level I shall be deemed to be applicable until the
Administrative Agent’s receipt of the Financials for the Borrower’s fiscal quarter ending on or
about December 1, 2007 (unless such Financials demonstrate that Pricing Level II, III, IV or V
should have been applicable during such period, in which case such other Pricing Level shall be
deemed to be applicable during such period) and adjustments to the Pricing Level then in effect
shall thereafter be effected in accordance with the preceding paragraphs.



80









 





EXHIBIT A

FORM OF OPINION




[See attached]




81









 





EXHIBIT B

COMPLIANCE CERTIFICATE





			
	To:     	 	The Lenders parties to the

Credit Agreement Described Below





     This Compliance Certificate is furnished pursuant to that certain Credit Agreement dated as
of                    , 2007 (as amended, modified, renewed or extended from time to time, the
“Agreement”) among CLARCOR Inc., a Delaware corporation (the “Borrower”), the lenders party thereto
and JPMorgan Chase Bank, National Association, as Administrative Agent for the Lenders and as LC
Issuer. 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 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 Agreement, all of which data and computations
are true, complete and correct.



     5. Schedule II hereto sets forth the determination of the interest rates to be paid for
Advances, the LC Fee rates and the commitment fee rates commencing on the third day following the
delivery hereof.



     6. Schedule III attached hereto sets forth the various reports and deliveries which are
required at this time under the Agreement and the other Loan Documents.



     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:



	 
	 

	 

	 


	 

	 


	 

	 








82









 





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



	 	 	 	 	 	 	 
	 	 	CLARCOR INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Bruce A. Klein	 	 
	 

	 	 	 	Vice President-Finance and 

Chief Financial Officer
	 	 






83









 






SCHEDULE I TO COMPLIANCE CERTIFICATE



Compliance as of _____, 20__ with

Sections 6.18.1 and 6.18.2 of

the Agreement




84









 








SCHEDULE II TO COMPLIANCE CERTIFICATE




Borrower’s Applicable Margin Calculation





85









 








SCHEDULE III TO COMPLIANCE CERTIFICATE




Reports and Deliveries Currently Due





86









 








EXHIBIT C

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 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 Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below, the interest in and to 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 that represents the amount and percentage
interest identified below of all of the Assignor’s outstanding rights and obligations under the
respective facilities identified below (including without limitation any letters of credit,
guaranties and Swing Line loans included in such facilities and, to the extent permitted to be
assigned under applicable law, all claims (including without limitation contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity), suits,
causes of action and any other right of the Assignor 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) (the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.



	 	 	 	 	 	 	 
	1.

	 	Assignor:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:
	 	 	 	and is an Affiliate/Approved
	 

	 	 	 	 	 	 
	 

	 	 	 	Fund of [identify Lender] 1	 	 
	 
	 	 	 	 	 	 
	3.

	 	Borrower(s):	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	  4.

	 	Administrative Agent:
	 	 	 	, as the Administrative Agent under
the Credit Agreement.
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	5.	 	Credit Agreement:	 	The [amount] Credit Agreement dated as of                      among
[name of Borrower(s)], the Lenders party thereto, [name of
Administrative Agent], as
Administrative Agent, and the other Administrative Agents party
thereto.









 




			
	1	 	Select as applicable.





87









 





6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	 	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Percentage Assigned of	 
	Facility Assigned	 	for all Lenders*	 	 	Assigned*	 	 	Commitment/Loans2	 
	                    3
	 	$	 	 	 	$	 	 	 	 	                    	%
	                    
	 	$	 	 	 	$	 	 	 	 	                    	%
	                    
	 	$	 	 	 	$	 	 	 	 	                    	%





7. Trade Date:
                                                             
4



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




     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]5 Accepted




[NAME OF ADMINISTRATIVE AGENT], as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:

	 	 	 	 






[Consented
to:]6






 




			
	*	 	Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date
and the Effective Date.
	 
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.




88









 









			
	3	 	Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being
assigned under this Assignment (e.g. “Revolving Credit Commitment,” “Term Loan Commitment,”, etc.)
	 
	4	 	Insert if satisfaction of minimum amounts is to be determined as of the Trade Date.
	 
	5	 	To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
	 
	6	 	To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, L/C Issuer) is
required by the terms of the Credit Agreement.





[NAME OF RELEVANT PARTY]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:

	 	 	 	 






89









 






ANNEX 1

TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




               1. Representations and Warranties.



               1.1 Assignor. The Assignor 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. Neither the Assignor nor any of its officers, directors,
employees, Administrative Agents or attorneys shall be responsible for (i) any statements,
warranties or representations made in or in connection with the Credit Agreement or any other Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency,
perfection, priority, collectibility, or value of the Loan Documents 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 any Loan Document, (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 any Loan Document, (v) inspecting any of the property, books or records of the
Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to
be taken in connection with the Loans or the Loan Documents.



               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) 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, (iii) agrees that its payment instructions and notice
instructions are as set forth in Schedule 1 to this Assignment and Assumption, (iv) confirms that
none of the funds, monies, assets or other consideration being used to make the purchase and
assumption hereunder are “plan assets” as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be “plan assets” under ERISA, (v) agrees to
indemnify and hold the Assignor harmless against all losses, costs and expenses (including, without
limitation, reasonable attorneys’ fees) and liabilities incurred by the Assignor in connection with
or arising in any manner from the Assignee’s non-performance of the obligations assumed under this
Assignment and Assumption, (vi) it has received a copy of the Credit Agreement, together with
copies of financial statements 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 (vii) attached as Schedule 1 to this Assignment and Assumption is any documentation required to
be delivered by the Assignee with respect to its tax status pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it
will perform in accordance with



90









 





their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



               2. Payments. The Assignee shall pay the Assignor, on the Effective Date, the amount
agreed to by the Assignor and the Assignee. 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 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 Illinois.



91









 





ADMINISTRATIVE QUESTIONNAIRE




(Schedule to be supplied by Closing Unit or Trading Documentation Unit)




US AND NON-US TAX INFORMATION REPORTING REQUIREMENTS




(Schedule to be supplied by Closing Unit or Trading Documentation Unit)




92









 





EXHIBIT D [Intentionally Omitted.]




93









 





EXHIBIT E

NOTE




                    , 2007




     CLARCOR Inc., a Delaware corporation (the “Borrower”), promises to pay to the order of
                                         (the “Lender”) the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Article 2 of the Agreement (as
hereinafter defined), in immediately available funds at the place specified pursuant to Article
2 of the Agreement, together with interest on the unpaid principal amount hereof at the rates
and on the dates set forth in the Agreement. The Borrower shall pay the principal of and accrued
and unpaid interest on the Loans in full on the Facility Termination Date.



     The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Loan and the
date and amount of each principal payment hereunder.



     This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the
Credit Agreement dated as of ___, 2007 (which, as it may be amended or modified and in effect
from time to time, is herein called the “Agreement”), among the Borrower, and the lenders party
thereto, including the Lender, the LC Issuer and JPMorgan Chase Bank National Association, as
Administrative Agent, to which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is guaranteed pursuant to the Subsidiary
Guaranty Agreement, all as more specifically described therein, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.



	 	 	 	 	 	 	 
	 	 	CLARCOR INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Bruce A. Klein	 	 
	 

	 	 	 	Vice President-Finance and 

Chief Financial Officer
	 	 






94









 





SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO




NOTE OF                                         ,

DATED                     ,




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	Maturity	 	 	 	 
	 	 	Amount of	 	of Interest	 	Principal	 	Unpaid
	Date	 	Loan	 	Period	 	Amount Paid	 	Balance
	         
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





95









 





EXHIBIT F




SUBSIDIARY GUARANTY




     THIS
SUBSIDIARY GUARANTY (this “Guaranty”) is made as of the ___ day of ___, 2007, by
Baldwin Filters, Inc., a Delaware corporation, CLARCOR Air Filtration Products, Inc., a Kentucky
corporation, Clark Filter, Inc., a Delaware corporation, Facet USA Inc., a Delaware corporation,
J.L. Clark, Inc., a Delaware corporation, Martin Kurz & Co., Inc., a New York corporation, Perry
Equipment Company, a Delaware corporation, Purolator EFP, LLC, a Delaware limited liability
company, Purolator Facet, Inc., a Delaware corporation, Total Filtration Services, Inc., an Ohio
corporation and United Air Specialists, Inc., an Ohio corporation (collectively, the “Subsidiary
Guarantors”) in favor of the Administrative Agent, for the benefit of the Lenders, under the Credit
Agreement referred to below;



WITNESSETH:




     WHEREAS, CLARCOR Inc., a Delaware corporation (the “Principal”) and JPMorgan Chase Bank,
National Association, Illinois, as Administrative Agent (the “Administrative Agent”), and certain
other Lenders from time to time party thereto have entered into a certain Credit Agreement dated as
of even date herewith (as same may be amended or modified from time to time, the “Credit
Agreement”), providing, subject to the terms and conditions thereof, for extensions of credit to be
made by the Lenders to the Principal;



     WHEREAS, it is a condition precedent to the Administrative Agent and the Lenders executing the
Credit Agreement that each of the Subsidiary Guarantors execute and deliver this Guaranty whereby
each of the Subsidiary Guarantors shall guarantee the payment when due, subject to Section 9
hereof, of all Guaranteed Obligations, as defined below; and



     WHEREAS, in consideration of the financial and other support that the Principal has provided,
and such financial and other support as the Principal may in the future provide, to the Subsidiary
Guarantors, and in order to induce the Lenders and the Administrative Agent to enter into the
Credit Agreement, and the Lenders and their Affiliates to enter into one or more Rate Management
Transactions with the Principal, and because each Subsidiary Guarantor has determined that
executing this Guaranty is in its interest and to its financial benefit, each of the Subsidiary
Guarantors is willing to guarantee the obligations of the Principal under the Credit Agreement, any
Note, any Rate Management Transaction, and the other Loan Documents;



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     SECTION 1.1. Selected Terms Used Herein.



     “Guaranteed Obligations” is defined in Section 3 below.



96









 





     SECTION 1.2. Terms in Credit Agreement. Other capitalized terms used herein but not
defined herein shall have the meaning set forth in the Credit Agreement.



     SECTION 2.1. Representations and Warranties. Each of the Subsidiary Guarantors
represents and warrants (which representations and warranties shall be deemed to have been renewed
upon each Borrowing Date under the Credit Agreement) that:



          (a) It is a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each jurisdiction in which
its business is conducted.




          (b) It has the power and authority and legal right to execute and deliver this Guaranty and to
perform its obligations hereunder. The execution and delivery by it of this Guaranty and the
performance of its obligations hereunder have been duly authorized by proper corporate proceedings,
and this Guaranty constitutes a legal, valid and binding obligation of such Subsidiary Guarantor
enforceable against it in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.




          (c) Neither the execution and delivery by it of this Guaranty, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof will violate (i) any
law, rule, regulation, order, writ, judgment, injunction, decree or award binding on it or any of
its subsidiaries or (ii) its articles or certificate of incorporation, partnership agreement,
certificate of partnership, articles or certificate of organization, bylaws, or operating or other
management agreement, as the case may be, or (iii) the provisions of any indenture or material
instrument or agreement to which it or any of its subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default thereunder (other
than violations or defaults that could not reasonably be expected to have a Material Adverse
Effect), or result in, or require, the creation or imposition of any Lien in, of or on the Property
of such Subsidiary Guarantor or a subsidiary thereof pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, adjudication, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision thereof, which has not
been obtained by it or any of its subsidiaries, is required to be obtained by it or any of its
subsidiaries in connection with the execution and delivery of this Guaranty or the performance by
it of its obligations hereunder or the legality, validity, binding effect or enforceability of this
Guaranty.




     SECTION 2.2. Covenants. Each of the Subsidiary Guarantors covenants that, so long
as any Lender has any Commitment outstanding under the Credit Agreement, any Rate Management
Transaction remains in effect or any of the Guaranteed Obligations shall remain unpaid, that it
will, and, if necessary, will enable the Principal to, fully comply with those covenants and
agreements set forth in the Credit Agreement.



97









 





     SECTION 3. The Guaranty. Subject to Section 9 hereof, each of the Subsidiary
Guarantors hereby absolutely and unconditionally guarantees, as primary obligor and not as surety,
the full and punctual payment (whether at stated maturity, upon acceleration or early termination
or otherwise, and at all times thereafter) and performance of the Obligations and the Rate
Management Obligations, including without limitation any such Obligations or Rate Management
Obligations incurred or accrued during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, whether or not allowed or allowable in such proceeding (collectively,
subject to the provisions of Section 9 hereof, being referred to collectively as the “Guaranteed
Obligations”). Upon failure by the Principal to pay punctually any such amount (including without
limitation any Reimbursement Obligation), each of the Subsidiary Guarantors agrees that it shall
forthwith on demand pay to the Administrative Agent for the benefit of the Lenders and, if
applicable, their Affiliates, the amount not so paid at the place and in the manner specified in
the Credit Agreement, any Note, any Rate Management Transaction or the relevant Loan Document, as
the case may be. Each Subsidiary Guarantor is and shall be severally liable for payment and
performance in full of all Guaranteed Obligations. This Guaranty is a guaranty of payment and not
of collection. Each of the Subsidiary Guarantors waives any right to require the Administrative
Agent and/or the Lenders to sue the Principal, any other Subsidiary Guarantor, any other guarantor,
or any other person obligated for all or any part of the Guaranteed Obligations, or otherwise to
enforce its payment against any collateral securing all or any part of the Guaranteed Obligations,
prior to enforcing its rights hereunder.



     SECTION 4. Guaranty Unconditional. Subject to Section 9 hereof, the obligations of
each of the Subsidiary Guarantors hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or otherwise affected
by:




(i) any extension, renewal, settlement, compromise, waiver or release in respect of any of
the Guaranteed Obligations, by operation of law or otherwise, or any obligation of any other
guarantor of any of the Guaranteed Obligations, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;




(ii) any modification or amendment of or supplement to the Credit Agreement, any Note, any
Rate Management Transaction or any other Loan Document;




(iii) any release, nonperfection or invalidity of any direct or indirect security for any
obligation of the Principal under the Credit Agreement, any Note, any Rate Management
Transaction, any other Loan Document, or any obligations of any other guarantor of any of
the Guaranteed Obligations, or any action or failure to act by the Administrative Agent, any
Lender or any Affiliate of any Lender with respect to any collateral securing all or any
part of the Guaranteed Obligations;




(iv) any change in the corporate existence, structure or ownership of the Principal, any
other Subsidiary Guarantor, or any other guarantor of any of the Guaranteed Obligations, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Principal, any other Subsidiary Guarantor, or any other guarantor of the Guaranteed
Obligations, or its assets or any resulting release or discharge of any obligation of the
Principal, or any other guarantor of any of the Guaranteed Obligations;



98









 






(v) the existence of any claim, setoff or other rights which the Subsidiary Guarantors may
have at any time against the Principal, any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Lender or any other Person, whether in connection
herewith or any unrelated transactions;




(vi) any invalidity or unenforceability relating to or against the Principal, or any other
guarantor of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any Rate Management Transaction, any other Loan Document, or any provision of
applicable law or regulation purporting to prohibit the payment by the Principal, or any
other guarantor of the Guaranteed Obligations, of the principal of or interest on any Note
or any other amount payable by the Principal under the Credit Agreement, any Note, any Rate
Management Transaction or any other Loan Document; or




(vii) any other act or omission to act or delay of any kind by the Principal, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Lender or any other
Person or any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of any Subsidiary Guarantor’s
obligations hereunder.



     SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each Subsidiary Guarantor’s obligations hereunder shall remain in full force
and effect until all Guaranteed Obligations shall have been indefeasibly paid in full, the
Commitments under the Credit Agreement shall have terminated or expired and all Rate Management
Transactions have terminated or expired. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Principal or any other party under the
Credit Agreement, any Rate Management Transaction or any other Loan Document is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the
Principal or otherwise, each of the Subsidiary Guarantor’s obligations hereunder with respect to
such payment shall be reinstated as though such payment had been due but not made at such time.



     SECTION 6. Waivers. Each of the Subsidiary Guarantors irrevocably waives acceptance
hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not
provided for herein, as well as any requirement that at any time any action be taken by any Person
against the Principal, any other guarantor of any of the Guaranteed Obligations, or any other
Person.



     SECTION 7. Subrogation. Each of the Subsidiary Guarantors hereby agrees not to
assert any right, claim or cause of action, including, without limitation, a claim for subrogation,
reimbursement, indemnification or otherwise, against the Principal arising out of or by reason of
this Guaranty or the obligations hereunder, including, without limitation, the payment or securing
or purchasing of any of the Guaranteed Obligations by any of the Subsidiary Guarantors unless and
until the Guaranteed Obligations are indefeasibly paid in full, any commitment to lend under the
Credit Agreement and any other Loan Documents is terminated and all Rate Management Transactions
have terminated or expired.



99









 





     SECTION 8. Stay of Acceleration. If acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the
Principal, all such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Note, any Rate Management Transaction or any other Loan Document shall nonetheless
be payable by each of the Subsidiary Guarantors hereunder forthwith on demand by the Administrative
Agent made at the request of the Required Lenders, to the extent permitted by applicable law.



     SECTION 9. Limitation on Obligations. (a) The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law, or any state, federal
or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors
generally, if and to the extent the obligations of any Subsidiary Guarantor under this Guaranty
would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the
amount of such Subsidiary Guarantor’s liability under this Guaranty, then, notwithstanding any
other provision of this Guaranty to the contrary, the amount of such liability shall, without any
further action by the Subsidiary Guarantors, the Administrative Agent or any Lender, be
automatically limited and reduced to the highest amount that is valid and enforceable as determined
in such action or proceeding (such highest amount determined hereunder being the relevant
Subsidiary Guarantor’s “Maximum Liability”). This Section 9(a) with respect to the Maximum
Liability of the Subsidiary Guarantors is intended solely to preserve the rights of the
Administrative Agent hereunder to the maximum extent not subject to avoidance under applicable law,
and none of the Subsidiary Guarantors or any other person or entity shall have any right or claim
under this Section 9(a) with respect to the Maximum Liability, except to the extent necessary so
that the obligations of the Subsidiary Guarantor hereunder shall not be rendered voidable under
applicable law.



     (b) Each of the Subsidiary Guarantors agrees that the Guaranteed Obligations may at any time
and from time to time exceed the Maximum Liability of each Subsidiary Guarantor, and may exceed the
aggregate Maximum Liability of all other Subsidiary Guarantors, without impairing this Guaranty or
affecting the rights and remedies of the Administrative Agent hereunder. Nothing in this Section
9(b) shall be construed to increase any Subsidiary Guarantor’s obligations hereunder beyond its
Maximum Liability.



     (c) In the event any Subsidiary Guarantor (a “Paying Subsidiary Guarantor”) shall make any
payment or payments under this Guaranty or shall suffer any loss as a result of any realization
upon any collateral granted by it to secure its obligations under this Guaranty, each other
Subsidiary Guarantor (each a “Non-Paying Subsidiary Guarantor”) shall contribute to such Paying
Subsidiary Guarantor an amount equal to such Non-Paying Subsidiary Guarantor’s “Pro Rata Share” of
such payment or payments made, or losses suffered, by such Paying Subsidiary Guarantor. For the
purposes hereof, each Non-Paying Subsidiary Guarantor’s “Pro Rata Share” with respect to any such
payment or loss by a Paying Subsidiary Guarantor shall be determined as of the date on which such
payment or loss was made by reference to the ratio of (i) such Non-Paying Subsidiary Guarantor’s
Maximum Liability as of such date (without giving effect to any right to receive, or obligation to
make, any contribution hereunder) or, if such Non-Paying Subsidiary Guarantor’s Maximum Liability
has not been determined, the aggregate amount of all monies received by such Non-Paying Subsidiary
Guarantor from the Principal after the date hereof (whether by loan, capital infusion or by other
means) to (ii) the aggregate



100









 







Maximum Liability of all Subsidiary Guarantors hereunder (including such Paying Subsidiary
Guarantor) as of such date (without giving effect to any right to receive, or obligation to make,
any contribution hereunder), or to the extent that a Maximum Liability has not been determined for
any Subsidiary Guarantors, the aggregate amount of all monies received by such Subsidiary
Guarantors from the Principal after the date hereof (whether by loan, capital infusion or by other
means). Nothing in this Section 9 (c) shall affect any Subsidiary Guarantor’s several liability
for the entire amount of the Guaranteed Obligations (up to such Subsidiary Guarantor’s Maximum
Liability). Each of the Subsidiary Guarantors covenants and agrees that its right to receive any
contribution under this Guaranty from a Non-Paying Subsidiary Guarantor shall be subordinate and
junior in right of payment to all the Guaranteed Obligations. The provisions of this Section 9(c)
are for the benefit of both the Administrative Agent and the Subsidiary Guarantors and may be
enforced by any one, or more, or all of them in accordance with the terms hereof.



     SECTION 10. Application of Payments. All payments received by the Administrative
Agent hereunder shall be applied by the Administrative Agent to payment of the Guaranteed
Obligations in the following order unless a court of competent jurisdiction shall otherwise direct:




     (a) FIRST, to payment of all costs and expenses of the Administrative Agent incurred in
connection with the collection and enforcement of the Guaranteed Obligations or of any
security interest granted to the Administrative Agent in connection with any collateral
securing the Guaranteed Obligations;




     (b) SECOND, to payment of that portion of the Guaranteed Obligations constituting
accrued and unpaid interest and fees, pro rata among the Lenders and their Affiliates in
accordance with the provisions of the Credit Agreement;




     (c) THIRD, to payment of the principal of the Guaranteed Obligations and the net early
termination payments and any other Rate Management Obligations then due and unpaid from the
Borrower to any of the Lenders or their Affiliates, pro rata among the Lenders and their
Affiliates in accordance with the terms of the Credit Agreement; and




     (d) FOURTH, to payment of any Guaranteed Obligations (other than those listed above)
pro rata among those parties to whom such Guaranteed Obligations are due in accordance with
the amounts owing to each of them.



     SECTION 11.  Notices. All notices, requests and other communications to any party
hereunder shall be given or made by telecopier or other writing and telecopied, or mailed or
delivered to the intended recipient at its address or telecopier number set forth on the signature
pages hereof or such other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions of Article XIII of
the Credit Agreement. Except as otherwise provided in this Guaranty, all such communications shall
be deemed to have been duly given when transmitted by telecopier, or personally delivered or, in
the case of a mailed notice sent by certified mail return-receipt requested, on the date set forth
on the receipt (provided, that any refusal to accept any such notice shall be deemed to be notice
thereof as of the time of any such refusal), in each case given or addressed as aforesaid.



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     SECTION 12. No Waivers. No failure or delay by the Administrative Agent or any
Lenders in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, any Note, any Rate Management Transaction and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies provided by law.



     SECTION 13. No Duty to Advise. Each of the Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Principal’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks that each of the Subsidiary Guarantors
assumes and incurs under this Guaranty, and agrees that neither the Administrative Agent nor any
Lender has any duty to advise any of the Subsidiary Guarantors of information known to it regarding
those circumstances or risks.



     SECTION 14. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the Lenders and their respective successors and permitted assigns and in
the event of an assignment of any amounts payable under the Credit Agreement, any Note, any Rate
Management Transaction, or the other Loan Documents, the rights hereunder, to the extent applicable
to the indebtedness so assigned, shall be transferred with such indebtedness. This Guaranty shall
be binding upon each of the Subsidiary Guarantors and their respective successors and permitted
assigns.



     SECTION 15. Changes in Writing. Neither this Guaranty nor any provision hereof may
be changed, waived, discharged or terminated orally, but only in writing signed by each of the
Subsidiary Guarantors and the Administrative Agent with the consent of the Required Lenders.



     SECTION 16. Costs of Enforcement. Each of the Subsidiary Guarantors agrees to pay
all costs and expenses including, without limitation, all court costs and reasonable attorneys’
fees and expenses paid or incurred by the Administrative Agent or any Lender or any Affiliate of
any Lender in endeavoring to collect all or any part of the Guaranteed Obligations from, or in
prosecuting any action against, the Principal, the Subsidiary Guarantors or any other guarantor of
all or any part of the Guaranteed Obligations.



     SECTION 17. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS.
EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING
IN CHICAGO, ILLINOIS AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN DOCUMENTS) OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH



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PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE SUBSIDIARY GUARANTORS, THE
ADMINISTRATIVE AGENT AND THE LENDERS ACCEPTING THIS GUARANTY HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.



     SECTION 18. Taxes. etc. All payments required to be made by any of the Subsidiary
Guarantors hereunder shall be made without setoff or counterclaim and free and clear of and without
deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties
or other charges of whatsoever nature imposed by any government or any political or taxing
authority thereof (but excluding Excluded Taxes), provided, however, that if any of the Subsidiary
Guarantors is required by law to make such deduction or withholding, such Subsidiary Guarantor
shall forthwith (i) pay to the Administrative Agent or any Lender, as applicable, such additional
amount as results in the net amount received by the Administrative Agent or any Lender, as
applicable, equaling the full amount which would have been received by the Administrative Agent or
any Lender, as applicable, had no such deduction or withholding been made, (ii) pay the full amount
deducted to the relevant authority in accordance with applicable law, and (iii) furnish to the
Administrative Agent or any Lender, as applicable, certified copies of official receipts evidencing
payment of such withholding taxes within 30 days after such payment is made.



     SECTION 19. Setoff. Without limiting the rights of the Administrative Agent or the
Lenders under applicable law, if all or any part of the Guaranteed Obligations is then due, whether
pursuant to the occurrence of a Default or otherwise, then the Guarantor authorizes the
Administrative Agent and the Lenders to apply any sums standing to the credit of the Guarantor with
the Administrative Agent or any Lender or any Lending Installation of the Administrative Agent or
any Lender toward the payment of the Guaranteed Obligations.



     SECTION 20. Foreign Currency. The specification of payment in a specific currency at
a specific place and time pursuant to the Credit Agreement, any Note, any Rate Management
Transaction or any other Loan Document is essential. That currency or those currencies are also
the currency of account and payment under this Guaranty. If any Subsidiary Guarantor is unable for
any reason to effect payment of a specific currency (other than United States currency) as required
by the preceding sentence or if any Subsidiary Guarantor defaults in the payment when due of any
payment of a specific currency (other than United States currency) under this Guaranty, the
Administrative Agent may, at its option, require such payment to be made to the Administrative
Agent’s principal office in the equivalent amount in United States currency at the Administrative
Agent’s then current selling rate for electronic transfers of that currency to the place or places
where the Guaranteed Obligations were payable. In the event that any payment, whether pursuant to
a judgment or otherwise, does not result in payment of the amount of currency due under this
Guaranty, upon conversion to the currency of account and transfer to the place specified for
payment, the Administrative Agent and the Lenders have an independent cause of action against the
Subsidiary Guarantors for the deficiency.



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     IN
WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this Guaranty to be duly executed, under seal, by its authorized officer as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	 Baldwin Filters, Inc. 


CLARCOR Air Filtration Products, Inc.


Clark Filter, Inc.


Facet USA Inc.


J.L. Clark, Inc.


Martin Kurz & Co., Inc.


Perry Equipment Company

Purolator EFP, LLC


Purolator Facet, Inc.


Total Filtration Services, Inc.


United Air Specialists, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Bruce A. Klein	 	 
	 

	 	 	 	Vice President and Treasurer
	 	 






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