EX-10.11






Exhibit 10.11




 





$350,000,000




CREDIT AGREEMENT




Dated as of October 31, 2008




among




THE FOLGERS COFFEE COMPANY,

as the Borrower,




BANK OF MONTREAL,

as Administrative Agent,




and




BANK OF AMERICA, N.A.,

as Syndication Agent,




and




The Other Lenders Party Hereto




 





BANC OF AMERICA SECURITIES LLC

and

BMO CAPITAL MARKETS,

as

Joint Lead Arrangers and Joint Book Managers




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	18	 
	1.03 Accounting Terms
	 	 	19	 
	1.04 Rounding
	 	 	20	 
	1.05 Times of Day
	 	 	20	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND LOANS
	 	 	20	 
	2.01 Loans
	 	 	20	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	20	 
	2.03 [Intentionally Omitted]
	 	 	21	 
	2.04 [Intentionally Omitted]
	 	 	21	 
	2.05 Prepayments
	 	 	22	 
	2.06 Termination of Commitments
	 	 	23	 
	2.07 Repayment of Loans
	 	 	23	 
	2.08 Interest
	 	 	23	 
	2.09 Fees
	 	 	24	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	24	 
	2.11 Evidence of Debt
	 	 	25	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	25	 
	2.13 Sharing of Payments by Lenders
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	28	 
	3.01 Taxes
	 	 	28	 
	3.02 Illegality
	 	 	31	 
	3.03 Inability to Determine Rates
	 	 	31	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	32	 
	3.05 Compensation for Losses
	 	 	33	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	33	 
	3.07 Survival
	 	 	34	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO LOANS
	 	 	34	 
	4.01 Conditions of Loans
	 	 	34	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	36	 
	5.01 Existence, Qualification and Power
	 	 	36	 
	5.02 Authorization; No Contravention
	 	 	36	 
	5.03 Governmental Authorization; Other Consents
	 	 	37	 
	5.04 Binding Effect
	 	 	37	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	37	 
	5.06 Litigation
	 	 	37	 
	5.07 No Default
	 	 	37	 
	5.08 Ownership of Real Property; Liens
	 	 	37	 
	5.09 Environmental Compliance
	 	 	38	 
	5.10 Insurance
	 	 	38	 






i









 






	 	 	 	 	 
	 	 	Page	 
	5.11 Taxes
	 	 	38	 
	5.12 ERISA Compliance
	 	 	38	 
	5.13 Subsidiaries; Equity Interests
	 	 	39	 
	5.14 Margin Regulations; Investment Company Act
	 	 	39	 
	5.15 Disclosure
	 	 	39	 
	5.16 Compliance with Laws
	 	 	40	 
	5.17 Intellectual Property; Licenses, Etc.
	 	 	40	 
	5.18 Solvency
	 	 	40	 
	5.19 Labor Matters
	 	 	40	 
	5.20 Compliance with Anti-Terrorism Laws
	 	 	40	 
	5.21 Related Documents
	 	 	41	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	41	 
	6.01 Financial Statements
	 	 	42	 
	6.02 Certificates; Other Information
	 	 	42	 
	6.03 Notices
	 	 	44	 
	6.04 Payment of Obligations
	 	 	45	 
	6.05 Preservation of Existence, Etc.
	 	 	45	 
	6.06 Maintenance of Properties
	 	 	45	 
	6.07 Maintenance of Insurance
	 	 	45	 
	6.08 Compliance with Laws
	 	 	45	 
	6.09 Books and Records
	 	 	46	 
	6.10 Inspection Rights
	 	 	46	 
	6.11 Use of Proceeds
	 	 	46	 
	6.12 Further Assurances
	 	 	46	 
	6.13 Compliance with Environmental Laws
	 	 	46	 
	6.14 Other Covenants
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	47	 
	7.01 Liens
	 	 	47	 
	7.02 Investments
	 	 	48	 
	7.03 Indebtedness
	 	 	50	 
	7.04 Fundamental Changes
	 	 	51	 
	7.05 Dispositions
	 	 	51	 
	7.06 Restricted Payments
	 	 	52	 
	7.07 Change in Nature of Business
	 	 	52	 
	7.08 Transactions with Affiliates
	 	 	52	 
	7.09 Burdensome Agreements
	 	 	52	 
	7.10 Use of Proceeds
	 	 	53	 
	7.11 Consolidated Leverage Ratio
	 	 	53	 
	7.12 Amendment, Etc. of Related Documents and Indebtedness
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	53	 
	8.01 Events of Default
	 	 	53	 
	8.02 Remedies Upon Event of Default
	 	 	55	 
	8.03 Application of Funds
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	56	 
	9.01 Appointment of Administrative Agent
	 	 	56	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	9.02 Delegation of Duties
	 	 	56	 
	9.03 Exculpatory Provisions
	 	 	57	 
	9.04 Reliance by the Administrative Agent
	 	 	57	 
	9.05 Notice of Default
	 	 	57	 
	9.06 Non-Reliance on Administrative Agent and Other Lenders
	 	 	58	 
	9.07 Indemnification
	 	 	58	 
	9.08 Administrative Agent in Its Individual Capacity
	 	 	59	 
	9.09 Successor Administrative Agent
	 	 	59	 
	9.10 Notices from Administrative Agent to Lenders
	 	 	59	 
	9.11 Syndication Agent and Arrangers
	 	 	59	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	60	 
	10.01 Amendments, Etc.
	 	 	60	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	60	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	63	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	63	 
	10.05 Payments Set Aside
	 	 	65	 
	10.06 Successors and Assigns
	 	 	65	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	68	 
	10.08 Right of Setoff
	 	 	69	 
	10.09 Interest Rate Limitation
	 	 	69	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	70	 
	10.11 Survival of Representations and Warranties
	 	 	70	 
	10.12 Severability
	 	 	70	 
	10.13 Replacement of Lenders
	 	 	70	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	71	 
	10.15 Waiver of Jury Trial
	 	 	72	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	72	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	73	 
	10.18 USA PATRIOT Act
	 	 	73	 






iii









 






	 
	SCHEDULES

	 

	2.01 Commitments and Applicable Percentages

	5.13 Subsidiaries and Other Equity Investments

	5.17 Intellectual Property Conflicts

	7.01 Existing Liens

	7.02 Existing Investments

	7.03 Existing Indebtedness

	10.02 Administrative Agent’s Office; Certain Addresses for Notices

	 
	EXHIBITS

	 
	A     Form of Committed Loan Notice

	B     Form of Note

	C     Form of Compliance Certificate

	D-1 Form of Assignment and Assumption

	D-2 Form of Administrative Questionnaire







iv









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”) is entered into as of October 31, 2008, by
and among THE FOLGERS COFFEE COMPANY, a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (each individually, a “Lender” and, collectively, the
“Lenders”), and BANK OF MONTREAL, as Administrative Agent.



PRELIMINARY STATEMENTS:




     The Borrower, a wholly-owned Subsidiary of The Procter & Gamble Company, an Ohio corporation
(the “Parent”), has agreed to acquire the Coffee Business of the Parent pursuant to various
agreements between the Borrower and the Parent, in connection with which (a) the Parent will
contribute the Coffee Business to the Borrower; (b) the Borrower will assume certain of the
liabilities related thereto; and (c) the Borrower will pay to the Parent a cash payment,
distribution or combination of the foregoing (the “Dividend”) of approximately
$350,000,000. The transactions described in this paragraph are hereinafter collectively referred
to as the “Transaction”.



     The Borrower has requested that the Lenders provide a term loan facility in order to finance
the payment of the Dividend to the Parent and the Lenders have indicated their willingness to lend
on the terms and subject to the conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Administrative Agent” means Bank of Montreal in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit D-2 or any other form approved by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” means this Credit Agreement.



1









 





     “Anti-Terrorism Laws” means Executive Order No. 13224, the PATRIOT Act, the laws
comprising or implementing the Bank Secrecy Act and the laws administered by the United States
Treasury Department’s Office of Foreign Asset Control and any similar laws relating to terrorism.



     “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Facility represented by (a) on or prior to the
Closing Date, such Lender’s Commitment at such time and (b) thereafter, the principal amount of
such Lender’s Loans at such time. If the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, or if the Commitments have expired, then the
Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender in respect of the Facility is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



     “Applicable Rate” means (a) from the Closing Date to the date on which the
Administrative Agent receives a Compliance Certificate for the fiscal quarter ending December 31,
2008, 1.250% per annum and (b) thereafter the applicable percentage per annum set forth below
determined by reference to the Consolidated Leverage Ratio as calculated on the last day of the
immediately preceding fiscal quarter:



	 	 	 	 	 	 	 
	Applicable Rate
	 	 	Consolidated	 	Eurodollar
	Pricing Level	 	Leverage Ratio	 	Rate
	1

	 	<1.50:1
	 	 	1.250	%
	2

	 	31.50:1 but
£2.25:1
	 	 	1.375	%
	3

	 	>2.25:1
	 	 	1.750	%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date
the applicable Compliance Certificate is delivered. Notwithstanding anything to the contrary
contained in this definition, the determination of the Applicable Rate for any period shall be
subject to the provisions of Section 2.10(b).



     “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.



     “Arrangers” means Banc of America Securities LLC and BMO, acting under its trade name
BMO Capital Markets, in their capacities as joint lead arrangers and joint book managers.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



2









 





     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit D-1 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the combined financial data of the Coffee
Business derived from the Parent’s audited consolidated balance sheet for the fiscal years ended
June 30, 2006, June 30, 2007 and June 30, 2008, and the related consolidated statements of income
or operations, shareholders’ equity and cash flows for such fiscal years of the Coffee Business,
including the notes thereto.



     “Base Rate” means for any day the greater of (a) the rate of interest announced or
otherwise established by the Administrative Agent from time to time as its prime commercial rate,
or its equivalent, for Dollar-denominated loans to borrowers located in the United States as in
effect on such day (it being acknowledged and agreed that such rate may not be the Administrative
Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1% and (c)
the Eurodollar Rate for a one month Interest Period on such day (or if such day is not a Business
Day, the immediately preceding Business Day) plus 13/8% (for the avoidance of doubt,
such rate for any such day shall be based on the rate appearing on the applicable screen at
approximately 11:00 am London time on such day). Any change in the Base Rate resulting from a
change in the prime commercial rate, the Federal Funds Rate or the Eurodollar Rate to be effective
as the date of the relevant change in such prime commercial rate, the Federal Funds Rate or the
Eurodollar Rate, respectively.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “BMO” means Bank of Montreal and its successors.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.



     “Business Day” means (a) any day that is not a Saturday, Sunday or other day on which
national banking associations are authorized or required to close and (b) if the applicable
Business Day relates to a Eurodollar Rate Loan, a day of the year on which dealings in deposits are
carried on in the London interbank Eurodollar market.



3









 





     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens
permitted hereunder):




     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 360 days from the date of acquisition thereof; provided that the
full faith and credit of the United States of America is pledged in support thereof;




     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States
of America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $500,000,000, in each case with maturities of not more than 180 days from the date of
acquisition thereof;




     (c) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and




     (d) Investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have
the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:




     (a) prior to the Merger, the Borrower shall cease to be a direct or indirect
wholly-owned Subsidiary of the Parent; or




     (b) subsequent to the Merger, the Borrower shall cease to be a direct or indirect
wholly-owned Subsidiary of Smucker.




Notwithstanding the foregoing, neither the Merger nor any of the other transactions
contemplated by the Transaction Agreement shall constitute a Change of Control.



4









 





     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Coffee Business” has the meaning ascribed to such term by the Separation Agreement.



     “Commitment” means, as to each Lender, its obligation to make a Loan to the Borrower
pursuant to Section 2.01 in an aggregate principal amount not to exceed the amount set
forth opposite such Lender’s name on Schedule 2.01 under the caption “Commitment” or
opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The aggregate principal amount of the Commitments of all of the Lenders as in
effect on the Closing Date is $350,000,000.



     “Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Consolidated Depreciation and Amortization Charges” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the aggregate of all depreciation and
amortization charges for fixed assets, leasehold improvements, and general intangibles in
accordance with GAAP.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Earnings for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Earnings: (i) Consolidated
Interest Expense for such period, (ii) Consolidated Income Tax Expense, (iii) Consolidated
Depreciation and Amortization Charges, (iv) non-recurring charges and expenses not to exceed
$100,000,000 in connection with the Transaction, the Merger, this Agreement and other related
transactions and (v) non-cash stock compensation expense. For purposes of determining the
Consolidated Leverage Ratio, Consolidated EBITDA for the fiscal quarters ending June 30, 2008,
March 31, 2008 and December 31, 2007 will be deemed to be $82,900,000, $80,100,000 and
$120,000,000, respectively.



     “Consolidated Income Tax Expense” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, all provisions for taxes based on the gross or net income of
the Borrower and its Subsidiaries (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto) and all franchise taxes, as determined in
accordance with GAAP.



     “Consolidated Interest Expense” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, interest expense determined on a consolidated basis and in
accordance with GAAP.



5









 





     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Indebtedness as of such date (excluding any Guarantee of the Obligations of any
Person which has Control of the Borrower) to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended.



     “Consolidated Net Earnings” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income (loss) of the Borrower and its Subsidiaries
(excluding extraordinary gains and extraordinary losses) for that period determined in accordance
with GAAP.



     “Consolidated Total Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, all Indebtedness (including, but not limited
to, current long-term and subordinated indebtedness, if any) determined in accordance with GAAP.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means an interest rate equal to the Base Rate plus 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Eurodollar Rate Loan plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale,



6









 




assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.




     “Dividend” has the meaning specified in the Preliminary Statements.



     “Dollar” and “$” mean lawful money of the United States.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



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



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



7









 




Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).




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



     “Eurodollar Rate” means, for any Borrowing of Eurodollar Rate Loans (or, as
applicable, for the purpose of determining the Base Rate for any day by reference to a one month
Interest Period), a rate per annum determined in accordance with the following formula:



	 	 	 	 	 	 	 	 	 
	Eurodollar Rate	 	=	 	LIBOR
	 
	 	 	 	 	 	1 – Eurodollar Reserve Percentage






     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Eurodollar Reserve Percentage” means, for any Borrowing of Eurodollar Rate Loans, the
daily average for the applicable Interest Period of the maximum rate, expressed as a decimal, at
which reserves (including, without limitation, any supplemental, marginal, and emergency reserves)
are imposed during such Interest Period by the Board of Governors of the Federal Reserve System (or
any successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or in
respect of any other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or any category of extensions of credit or
other assets that includes loans by non-United States offices of any Lender to United States
residents), subject to any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this definition, the
Eurodollar Rate Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D
without benefit or credit for any prorations, exemptions or offsets under Regulation D. The
Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage.



     “Event of Default” has the meaning specified in Section 8.01.



8









 





     “Excluded Issuance” by any Person means an issuance and sale of an Equity Interest in
such Person in connection with the Merger or as otherwise contemplated by the Related Documents.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) any taxes imposed on or measured in whole or in part by revenue, net income,
franchise taxes or other taxes imposed (in lieu of net income taxes), by the United States, or by
the jurisdiction under the laws of which such recipient (i) is organized or incorporated, (ii)
maintains its principal lending office or, in the case of any Lender, its applicable Lending Office
with respect to this Agreement, (iii) is doing business other than a business resulting from
entering into this Agreement or receiving any payment or enforcing any right under this Agreement
or (iv) has a present or former connection other than a connection resulting from entering into
this Agreement, receiving any payment or enforcing any right under this Agreement, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction
described in clause (a), (c) any backup withholding tax that is required by the Code to be withheld
from amounts payable to a Lender that has failed to comply with clause (A) of Section
3.01(e)(ii), and (d) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 10.13), any United States withholding tax that (i) is
required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at
the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with clause (B) of Section 3.01(e)(ii), except in the case of clause (i), to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or
(iii).



     “Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of the Commitments at such time and (b) thereafter, the aggregate principal amount of the
Loans of all Lenders outstanding at such time.



     “Federal Funds Rate” means, for any day, the rate determined by the Administrative
Agent to be the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates
per annum quoted to the Administrative Agent at approximately 11:00 a.m. (Eastern time) (or as soon
thereafter as is practicable) on such day (or, if such day is not a Business Day, on the
immediately preceding Business Day) by two or more Federal funds brokers selected by the
Administrative Agent for sale to the Administrative Agent at face value of Federal funds in the
secondary market in an amount equal or comparable to the principal amount for which such rate is
being determined.



     “Fee Letter” means the letter agreement, dated June 4, 2008, by and among the
Borrower, the Administrative Agent, the Syndication Agent and the Arrangers.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



9









 





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



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



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



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,



10









 




infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.




     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, excluding in all cases trade payables in the ordinary course of business:




     (a) all obligations of such Person to repay borrowed money, direct or indirect,
incurred or assumed;




     (b) all obligations of such Person to pay the deferred purchase price of capital
assets;




     (c) all obligations under conditional sales or other title retention agreements;




     (d) all obligations (contingent or otherwise) under or in respect of any letter of
credit or banker’s acceptance;




     (e) all net obligations (on a mark-to-market basis) under any currency swap agreement,
interest rate swap, cap, collar or floor agreement or other interest rate management device
or Swap Contract;




     (f) all Synthetic Lease Obligations;




     (g) all capital lease agreements that have been or should have capitalized on the books
of such Person in accordance with GAAP;




     (h) all obligations of such Person with respect to asset securitization financing
programs;




     (i) all obligations to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of such Person;




     (j) any other transaction (including forward sale or purchase agreements) having the
commercial effect of a borrowing of money entered into by such Person to finance its
operations or capital requirements, and




     (k) any guaranty of any obligations described in subpart (a) through (j) hereof.



     For all purposes hereof, including the computation of the Consolidated Leverage Ratio, (i) the
Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person, (ii) the amount of any net obligation under any Swap Contract on any
date shall be deemed to be the Swap Termination Value thereof as of such date, (iii) the amount of
any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date and (iv) the amount of any Guarantee
shall be as provided in the definition thereof.



11









 





     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Eurodollar Rate Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last
Business Day of each January, April, July and October and the Maturity Date.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice; provided that: (i) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall end on the
next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and (iii) no Interest Period shall extend beyond the Maturity
Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the assets of another Person or of a business unit of another
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “IP Rights” has the meaning specified in Section 5.17.



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.



12









 





     “Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a
Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Loans at
such time.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “LIBOR” means, for an Interest Period for a Borrowing of Eurodollar Rate Loans, (a)
the LIBOR Index Rate for such Interest Period, if such rate is available, or (b) if the LIBOR Index
Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in Dollars in immediately
available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) two
Business Days before the beginning of such Interest Period by three or more major banks in the
interbank eurodollar market selected by the Administrative Agent for delivery on the first day of
and for a period equal to such Interest Period and in an amount equal or comparable to the
principal amount of the Eurodollar Rate Loan scheduled to be made as part of such Borrowing.



     “LIBOR Index Rate” means, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the next higher one hundred-thousandth of 1%) for deposits in Dollars for
a period equal to such Interest Period, which appears on the LIBOR01 Page as of 11:00 a.m. (London,
England time) on the day two Business Days before the commencement of such Interest Period.



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



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower pursuant to
Section 2.01 in the form of a term loan.



     “Loan Documents” means, collectively, (a) this Agreement (including any amendment
hereto), (b) the Notes, (c) the Fee Letter, and (d) each other document delivered by the Loan
Parties to or in favor of the Administrative Agent or the Lenders pursuant hereto.



     “Loan Parties” means, collectively, the Borrower and any Person that enters into a
Loan Document (other than the Administrative Agent and the Lenders).



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, operations, affairs, financial condition, assets or property of
the



13









 




Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.




     “Maturity Date” means the earlier of (a) November 15, 2009 and (b) the date which is
one year and one day following the consummation of the Merger; provided, however,
that if such date is not a Business Day, the Maturity Date shall be the next succeeding Business
Day.



     “Merger” means the merger of the Merger Sub with and into the Borrower pursuant to the
Transaction Agreement.



     “Merger Sub” means Moon Merger Sub, Inc., a Delaware corporation and a direct,
wholly-owned subsidiary of Smucker.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means with respect to any Disposition by the Borrower or any of
its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such transaction (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is
secured by the applicable asset and that is required to be repaid in connection with such
transaction (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses
incurred by the Borrower or such Subsidiary in connection with such transaction, (C) income taxes
reasonably estimated to be payable in connection with such Disposition, and (D) the amount of any
reserve established for contingent liabilities associated with such Disposition, and, with respect
to the sale or issuance of any Equity Interest by the Borrower or any of its Subsidiaries, or the
incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries, the excess
of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over
(ii) the underwriting discounts and commissions, and other out-of-pocket expenses, incurred by the
Borrower or such Subsidiary in connection therewith.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



14









 





     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, similar charges or similar levies arising from any payment made hereunder
or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means, at any time, the aggregate outstanding principal amount of
Loans after giving effect to any borrowings and prepayments or repayments of Loans occurring on
such date.



     “Parent” has the meaning specified in the Preliminary Statements.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



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



     “Platform” has the meaning specified in Section 6.02.



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(c).



15









 





     “Related Documents” means the Transaction Agreement, the Separation Agreement, the
Voting Agreement dated as of June 4, 2008 by and among the Parent and certain shareholders of
Smucker, and the other “Ancillary Agreements” (as defined in the Separation Agreement).



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



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



     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the Facility on such date; provided that the portion of the Facility held by any
Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, vice president of finance, treasurer, assistant treasurer or controller of a Loan Party
and, solely for purposes of notices given pursuant to Article II, any other officer of the
applicable Loan Party so designated by any of the foregoing officers in a notice to the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of
a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



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



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Separation Agreement” means that certain Separation Agreement dated as of June 4,
2008 by and among the Borrower, the Parent and Smucker.



     “Smucker” means The J. M. Smucker Company, an Ohio corporation.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of
the assets of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and matured, (c) such Person
does



16









 




not intend to, and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital, and (e) such Person is able
to pay its debts and liabilities, contingent obligations and other commitments as they mature in
the ordinary course of business. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.




     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Syndication Agent” means Bank of America, N.A. in its capacity as syndication agent
under this Agreement, or any successor syndication agent.



17









 





     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.



     “Threshold Amount” means $30,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans.



     “Transaction” has the meaning specified in the Preliminary Statements.



     “Transaction Agreement” means that certain Transaction Agreement dated as of June 4,
2008 by and among the Borrower, the Parent, Smucker and the Merger Sub.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
over the value of assets of the Pension Plan. For this purpose, the accrued benefit liabilities of
a Pension Plan for a plan year shall be the Pension Plan’s “current liability” determined under
Section 412(1)(7) of the Code or the Pension Plan’s “funding target” determined under Section
430(d)(1) of the Code (without regard to Section 430(i)(1) of the Code), as applicable, for the
plan year, and the value of the assets for such plan year shall be such value as is used pursuant
to Section 412 or Section 430 of the Code, as applicable, for purposes of determining the annual
contribution requirements with respect to the Pension Plan for such plan year.



     “United States” and “U.S.” mean the United States of America.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented, amended and restated or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein or in any other Loan Document), (ii) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (iii) the words
“herein,”



18









 






“hereof” and “hereunder,” and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document to Articles,
Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.




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




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in GAAP.



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein.



19









 





     (d) Closing Date Deliverable. With respect to the calculation of the Consolidated
Leverage Ratio to be delivered on the Closing Date pursuant to Section 4.01(a)(vi), all
financial data, financial calculations and related definitions, including, without limitation, the
definitions of “Consolidated Depreciation and Amortization Charges,” “Consolidated EBITDA,”
“Consolidated Income Tax Expense,” “Consolidated Interest Expense,” “Consolidated Leverage Ratio,”
“Consolidated Net Earnings” and “Consolidated Total Indebtedness” shall be computed with respect to
the Coffee Business based upon historical combined financial data of the Coffee Business derived
from the Parent’s financial statements and accounting records as specified in publicly available
documents filed in connection with the Transaction.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



ARTICLE II.

THE COMMITMENTS AND LOANS




     2.01 Loans. Subject to the terms and conditions set forth herein, each Lender severally
agrees to make a single term loan to the Borrower on the Closing Date in an amount not to exceed
such Lender’s Applicable Percentage of the Facility. The Borrowing on the Closing Date shall
consist of Loans made simultaneously by the Lenders in accordance with their respective Applicable
Percentage of the Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid
may not be reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (Eastern time) (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of



20









 




Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans
are to be converted, and (v) if applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the Facility, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described in
Section 2.02(a). In the case of the initial Borrowing, each Lender shall make the amount
of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 10:00 a.m. (Eastern time) on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.01, the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of BMO with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the continuance
of an Event of Default, the Administrative Agent may, at the direction of the Required Lenders, by
written election delivered to the Borrower, suspend the ability of the Borrower to continue or
convert to Eurodollar Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in BMO’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than six Interest
Periods in effect in respect of the Facility.



     2.03 [Intentionally Omitted].



     2.04 [Intentionally Omitted].



21









 





     2.05 Prepayments.



     (a) Optional. The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay the Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (Eastern time) (A) three Business Days prior to any date of prepayment of Eurodollar
Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000
or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of
its receipt of each such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage in respect of the Facility). If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each prepayment of the
outstanding Loans pursuant to this Section 2.05(a) shall be paid to the Lenders in
accordance with their respective Applicable Percentages.



     (b) Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any
property (other than any Disposition of any property permitted by subsections (a) through
(h) of Section 7.05) which results in the realization by such Person of Net Cash
Proceeds in excess of $100,000,000 in the aggregate from the Closing Date to the Maturity Date, the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such excess Net Cash
Proceeds promptly, and in any event within five Business Days, upon receipt thereof by such Person
(such prepayments to be applied as set forth in clause (iv) below); provided,
however, that, with respect to any Net Cash Proceeds realized under a Disposition described
in this Section 2.05(b)(i), at the election of the Borrower (as notified by the Borrower to
the Administrative Agent on or within five Business Days of the date of such Disposition), and so
long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary
may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 180
days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been
consummated (as certified by the Borrower in writing to the Administrative Agent) or (y) a
definitive agreement shall have been entered into committing the Borrower or such Subsidiary to
make such purchase; and provided further, however, that any Net Cash
Proceeds not subject to such definitive agreement or so reinvested by such date shall be
immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).



     (ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity
Interests (other than Excluded Issuances or any sales or issuances of Equity Interests to another
Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all
Net Cash Proceeds received therefrom promptly, and in any event within five Business Days, upon
receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in
clause (iv) below).



22









 





     (iii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to
Section 7.03) after the Closing Date, the Borrower shall prepay an aggregate principal
amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt
thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause
(iv) below).



     (iv) Each prepayment of Loans pursuant to the foregoing provisions of this Section
2.05(b) shall be applied to the principal of the Loans and shall be paid to the Lenders in
accordance with their respective Applicable Percentages.



     (c) Anything contained in this Agreement to the contrary notwithstanding, the aggregate
principal amount of all Loans outstanding as of such date plus any accrued and unpaid interest and
fees shall be prepaid in full on the date 31 days after the Closing Date unless (i) on or prior to
such 31st day the Merger shall have been consummated substantially in accordance with the terms of
the Transaction Agreement and the other Related Documents and (ii) as of such 31st day
(A) none of the conditions precedent set forth in the Transaction Agreement or any of the other
Related Documents shall have been waived in any respect materially adverse to the Lenders, other
than with the consent of the Required Lenders, and (B) neither the Transaction Agreement nor any
other Related Document shall have been amended in any respect materially adverse to the Lenders,
other than with the consent of the Required Lenders.



     2.06 Termination of Commitments. The aggregate Commitments shall be automatically and
permanently reduced to zero on the date of the initial Borrowing.



     2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Loans outstanding on such date.



     2.08 Interest.



     (a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the written election of the
Administrative Agent, at the direction of the Required Lenders, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.



23









 






     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. (a) Duration Fee. On each of the 90th, 180th and 270th days after the
Closing Date, the Borrower will pay to the Administrative Agent for the ratable benefit of the
Lenders in accordance with their Applicable Percentage a fee equal to 0.25% of the aggregate
principal amount of the then outstanding Loans.



     (b) Other Fees. The Borrower shall pay to the Arrangers, the Syndication Agent and
the Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.



     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans when the Base Rate is determined by BMO’s “prime rate”
shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.



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



24









 




Administrative Agent or any Lender, as the case may be, under Section 2.08(b) or under
Article VIII.




     2.11 Evidence of Debt.



     The Loans made by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such
Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. (Eastern
time) on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent after 1:00 p.m. (Eastern time) shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative



25









 




Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the Administrative Agent
in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for
such period. If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any
payment by the Borrower shall be without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender, in immediately available funds with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent
shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Loan or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding obligation to do so
on such date, and no Lender shall be responsible for the failure of any other Lender to so make its
Loan or to make its payment under Section 10.04(c).



26









 





     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     (f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, interest and fees then
due hereunder, such funds shall be applied (i) first, toward payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, toward payment of principal
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such
Lender hereunder and under the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and payable to such Lender
at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders
hereunder and under the other Loan Documents at such time) of payments on account of the
Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such
time obtained by all the Lenders at such time or (b) Obligations owing (but not due and payable) to
such Lender hereunder and under the other Loan Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations owing (but not due and
payable) to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not
due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of
payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and
under the other Loan Documents at such time obtained by all of the Lenders at such time, then the
Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided that:




     (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing



27









 




arrangements may exercise against the Borrower rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the Borrower in the
amount of such participation.




ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrower hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered pursuant to subsection
(e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender, as the case
may be, receives an amount equal to the sum it would have received had no such withholding
or deduction been made.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent and each Lender,
and shall make payment in respect thereof within ten (10) days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) withheld or deducted by the
Borrower or the Administrative Agent or paid by the Administrative Agent or such Lender, as the
case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The Borrower shall also, and does hereby,
indemnify the Administrative Agent, and shall make



28









 




payment in respect thereof within ten (10) days after demand therefor, for any amount which a
Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by clause
(ii) of this subsection. A certificate as to the amount of any such payment or liability delivered
to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.





     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall,
and does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment
in respect thereof within ten (10) days after demand therefor, against any and all Taxes and
any and all related losses, claims, liabilities, penalties, interest and expenses (including
the fees, charges and disbursements of any counsel for the Borrower or the Administrative
Agent) incurred by or asserted against the Borrower or the Administrative Agent by any
Governmental Authority as a result of the failure by such Lender to deliver, or as a result
of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered
by such Lender to the Borrower or the Administrative Agent pursuant to subsection (e). Each
Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts
at any time owing to such Lender under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.




     (ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,



29









 






     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the Borrower
or the Administrative Agent as will enable the Borrower or the Administrative Agent,
as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




     (II) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.



     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be



30









 




materially disadvantageous to it, in the reasonable judgment of such Lender, and as may
be reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative
Agent make any withholding or deduction for taxes from amounts payable to such Lender.




     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender. If the Administrative Agent or any Lender determines,
in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent or such Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund), provided that the Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This subsection shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar



31









 




Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate Loan , or (c) the
Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.




     3.04 Increased Costs; Reserves on Eurodollar Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to reduce the amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below
that which such Lender or such Lender’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to



32









 




time the Borrower will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within ten (10) days after receipt thereof.



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



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.



33









 





     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable,
use reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case
may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV.

CONDITIONS PRECEDENT TO LOANS




     4.01 Conditions of Loans. The obligation of each Lender to make its Loan hereunder is subject
to satisfaction of the following conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in form and substance
reasonably satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least
three Business Days prior to the Closing Date;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of the secretary of the Borrower as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents;



34









 






     (iv) a certificate signed by a Responsible Officer of the Borrower certifying and
attaching thereto as being valid and in full force and effect the following: (i) its charter
(or similar formation document) and any amendments thereto, certified by the appropriate
Governmental Authority, (ii) its bylaws (or similar governing document) and any amendments
thereto and (iii) its good standing or similar certificates evidencing that the Borrower is
validly existing, in good standing and qualified to engage in business in the State of
Delaware and in each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect;




     (v) a favorable opinion of Jones Day, special New York counsel to the Borrower,
addressed to the Administrative Agent and each Lender and addressing such matters concerning
the Borrower and the Loan Documents as the Lenders may reasonably request;




     (vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the following representations and warranties are true as of the Closing Date: (1) the
representations and warranties made by or with respect to the Parent in the Transaction
Agreement to the extent, but only to the extent, that Smucker or the Merger Sub has the
right to terminate its obligations under the Transaction Agreement as a consequence of a
breach of any such representations or warranties and (2) the representations and warranties
of the Borrower set forth in Sections 5.01, 5.02 (excluding clause (b)(i)
thereof), 5.03, 5.04, 5.14 and 5.16 hereto; (B) that since
June 30, 2007, no event or condition has occurred that has had or could be reasonably
expected, either individually or in the aggregate, to result in a “Coffee Business MAE” (as
defined in the Transaction Agreement); (C) that the Parent has conveyed, or caused the
conveyance of, the “Folgers Assets” (as defined in the Separation Agreement) (other than the
“Brazilian Assets” as defined in the side letter agreement dated the date hereof and
executed by the Parent, the Borrower, Smucker and Merger Sub) to the Borrower in accordance
with Section 1.2 of the Separation Agreement; and (D) subject to Section 1.03(d), a
calculation of the Consolidated Leverage Ratio as of June 30, 2008;




     (vii) a certificate attesting to the Solvency of the Borrower before and after giving
effect to the Transaction, from a responsible financial officer;




     (viii) copies of each of the Related Documents executed on or prior to the Closing
Date, duly executed by the parties thereto, together with all agreements, instruments and
other documents delivered in connection therewith as the Administrative Agent shall request;
and




     (ix) no fewer than five Business Days prior to the Closing Date, documentation and
information regarding the Borrower required to be delivered in order to comply with
Section 10.18 hereto and applicable Anti-Terrorism Laws.


     (b) After giving effect to the transactions contemplated hereby, neither the Borrower nor any
of its Subsidiaries shall have outstanding any Indebtedness or preferred stock, other than




35









 








(i) Indebtedness incurred pursuant to the Loan Documents and (ii) other Indebtedness listed on
Schedule 7.03.



     (c) No litigation shall be pending or threatened that restrains, enjoins or otherwise
prohibits the ability of the Borrower to enter into this Agreement or the other Loan Documents or
that restrains, enjoins or otherwise prohibits the Lenders from entering into or consummating the
financing contemplated hereby.



     (d) (i) All fees required to be paid to the Administrative Agent, the Syndication Agent and
the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be
paid to the Lenders on or before the Closing Date shall have been paid.



     (e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced and delivered to the Borrower prior to or on the
Closing Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the Administrative Agent).



     Without limiting the generality of the provisions of the last sentence of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. The Borrower (a) is duly organized or formed,
validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which it is a party has been duly authorized by all
necessary corporate or other organizational action, and does not and will not (a) contravene
the



36









 




terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any material Contractual Obligation to which the Borrower is a party or affecting the Borrower or
the properties of the Borrower or any of its Subsidiaries or (ii) any material order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its
property is subject; or (c) violate any provision of any Law except to the extent such violation
could not reasonably be expected to have a Material Adverse Effect.




     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, the Borrower of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by the Borrower. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial condition of the Coffee Business as of
the date thereof and the results of operations of the Coffee Business for the period covered
thereby in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein.



     (b) Since June 30, 2008, there has been no event or circumstance, either individually or in
the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, overtly threatened at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or (b) either individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.



     5.07 No Default. Neither the Borrower nor any Subsidiary thereof is in default under or with
respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.08 Ownership of Real Property; Liens. Each of the Borrower and each Subsidiary has title
to, or valid leasehold interests in, all material real property necessary or used



37









 




in the ordinary
conduct of its business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The real property of the
Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.




     5.09 Environmental Compliance. The Borrower and its Subsidiaries are in compliance with all
material Environmental Laws.



     5.10 Insurance. Prior to the consummation of the Merger, the properties of the Borrower and
its Subsidiaries are insured in an manner consistent with past practices, and after the
consummation of the Merger, the properties of the Borrower and its Subsidiaries will be insured
with financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
similarly situated and engaged in the same or similar businesses as the Borrower and its
Subsidiaries.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state income and other
material tax returns and reports required to be filed, and have paid all Federal, state income and
other material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any
Loan Party nor any Subsidiary thereof is or is proposed to be party to any tax sharing agreement
other than the Tax Matters Agreement among the Borrower, the Parent and Smucker to be entered into
in connection with the Merger as contemplated by the Transaction Agreement.



     5.12 ERISA Compliance.



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



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



38









 





     (c) (i) No ERISA Event has occurred or is reasonably expected to occur that would have a
Material Adverse Effect; (ii) as of the first day of the most recent plan year of a Pension Plan
for which the sponsor of the Pension Plan has received an actuarial valuation report, no Pension
Plan has any Unfunded Pension Liability that could reasonably be expected to have a Material
Adverse Effect; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA) that would have a Material
Adverse Effect; (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan that could reasonably be expected to have a Material Adverse
Effect; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that
could be reasonably expected to be subject to Section 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Borrower or applicable Subsidiary in the amounts specified on
Part (a) of Schedule 5.13 free and clear of all Liens. As of the Closing Date, neither the
Borrower nor any Subsidiary has any equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.13. Part (c) of Schedule
5.13 shows as of the Closing Date the jurisdiction of the Borrower’s incorporation, the address
of its principal place of business and its U.S. taxpayer identification number. As of the Closing
Date, the copy of the charter of the Borrower and each amendment thereto provided pursuant to
Section 4.01(a)(iv) is a true and correct copy of each such document, each of which is
valid and in full force and effect as of the Closing Date.



     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. No part of the proceeds of any of the Loans will be used for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T, U or X of the FRB.



     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. As of the Closing Date, the Borrower has disclosed to the Administrative
Agent and the Lenders all known facts that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished in writing by or on behalf of any Loan Party
to the Administrative Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so furnished)



39









 




contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, taken as a whole and in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.




     5.16 Compliance with Laws. The Borrower and each Subsidiary thereof is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



     5.17 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person, except as set forth on Schedule 5.17.



     5.18 Solvency. As of the Closing Date, the Borrower and its Subsidiaries on a consolidated
basis are (and after giving effect to the Loans hereunder and the Transaction will be) Solvent.



     5.19 Labor Matters. Neither the Borrower nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonable be expected to have a Material Adverse Effect. There is (a)
no significant unfair labor practice complaint pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against any of them before the
National Labor Relations Board or any similar Governmental Authority in any jurisdiction, and no
significant grievance or significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, (b) no significant strike, labor
dispute, slowdown or stoppage is pending against the Borrower or any of its Subsidiaries or, to the
best knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries and (c)
to the best knowledge of the Borrower, no question concerning union representation exists with
respect to the employees of the Borrower or any of its subsidiaries, except (with respect to any
matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as
could not reasonably be expected to have a Material Adverse Effect.



     5.20 Compliance with Anti-Terrorism Laws.



     (a) Neither the Borrower nor any of its Subsidiaries is in violation of any Anti-Terrorism Law
or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
any Anti-Terrorism Law, in each case in any respect that could reasonably be expected to have
a Material Adverse Effect.



40









 





     (b) Except as could not reasonably be expected to have a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries nor their agents acting or benefiting in any capacity in
connection with the Loans or other transactions hereunder, is any of the following (each a
“Blocked Person”):




     (i) a person that is listed in the annex to Executive Order No. 13224;




     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to Executive Order No. 13224;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




     (iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in Executive Order No. 13224;




     (v) a person that is named as a “specially designated national” on the most current
list published by the United States Treasury Department’s Office of Foreign Asset Control at
its official website or any replacement website or other replacement official publication of
such list; or




     (vi) a person who is affiliated or associated with a person listed above.



     Neither the Borrower nor any of its Subsidiaries, nor to the knowledge of the Borrower any of
its agents acting in any capacity in connection with the Loans or other transactions hereunder, (A)
conducts any business or engages in making or receiving any contribution of funds, goods or
services to or for the benefit of any Blocked Person or (B) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant to Executive Order
No. 13224, in each case in any respect that could reasonably be expected to have a Material Adverse
Effect.



     5.21 Related Documents. The Borrower has delivered to the Administrative Agent true, complete
and correct copies of the currently existing Related Documents (including all schedules, exhibits,
annexes, amendments, supplements, modifications, and all other material documents delivered
pursuant thereto or in connection therewith) and such Related Documents are in effect. The Related
Documents as originally executed and delivered by the parties thereto have not been amended,
terminated, waived, supplemented or modified (a) except as disclosed to the Lenders or (b) in any
manner materially adverse to the Lenders except with the consent of the Required Lenders.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Loan or other Obligation (other than any contingent obligations for indemnity
and the like) hereunder shall remain unpaid or unsatisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02,
and 6.03) cause each Subsidiary to:



41









 





     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, such consolidated statements to be certified by a Responsible Officer of the
Borrower as fairly presenting, in all material respects, the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and



     (b) as soon as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated
statements of income or operations for such fiscal quarter and for the portion of the Borrower’s
fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity,
and cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth
in comparative form, as applicable, the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable
detail, such consolidated statements to be certified by a Responsible Officer of the Borrower as
fairly presenting, in all material respects, the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in clauses (a) and (b) above at the times specified
therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent, in form and detail
satisfactory to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;



     (b) promptly after any request by the Administrative Agent, copies of any detailed audit
reports, management letters or recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent accountants in
connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any
of them;



42









 





     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements, if any, which the
Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise
required to be delivered to the Administrative Agent pursuant hereto;



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to all
of the Borrower’s shareholders generally;



     (e) not later than five Business Days after receipt thereof by the Borrower or any Subsidiary
thereof, copies of all material, non-routine notices, requests and other documents (including
amendments, waivers and other modifications) so received under or pursuant to any Related Document
or material instrument, indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that could materially impair the value of
the interests or the rights of any Loan Party;



     (f) not later than five Business Days following the consummation of, the Merger, an incumbency
certificate and/or such other certificates of Responsible Officers of the Borrower as the
Administrative Agent may require to evidence the identity, authority and capacity, on a post-Merger
basis, of each Responsible Officer of the Borrower authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents; and



     (g) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent if
requested to deliver such paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper copies of the Compliance Certificates required by Section 6.02(a)
to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower
with any such request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.



43









 





     The Borrower hereby acknowledges that (a) the Administrative Agent, the Syndication Agent
and/or the Arrangers will make available to the Lenders materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the
Syndication Agent and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in Section
10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent, the
Syndication Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not
designated “Public Side Information.”



     6.03 Notices. Promptly notify the Administrative Agent:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or, in the Borrower’s good faith judgment, could
reasonably be expected to result, in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Borrower or any Subsidiary,
including pursuant to any applicable Environmental Laws, in each case, to the extent the Borrower
reasonably believes that such breach, non-performance, dispute, litigation investigation,
proceeding, suspension or development could reasonably be expected to result in a Material Adverse
Effect;



     (c) of the occurrence of any ERISA Event that would result in a Material Adverse Effect;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Borrower referred to in Section
2.10(b); and



     (e) of the (i) occurrence of any Disposition of property or assets for which the Borrower is
required to make a mandatory prepayment pursuant to Section 2.05(b)(i), (ii) occurrence of
any sale of capital stock or other Equity Interests for which the Borrower is



44









 




required to make a
mandatory prepayment pursuant to Section 2.05(b)(ii), and (iii) incurrence or issuance of
any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to
Section 2.05(b)(iii).




     Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall
be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take
with respect thereto.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons similarly situated and
engaged in the same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons and providing for not less than 30 days’
prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance;
provided, that prior to the consummation of the Merger, the Borrower and its Subsidiaries
may maintain insurance in a manner consistent with past practices.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b)



45









 




the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.




     6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Borrower or such Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and a single Lender (on behalf of all Lenders) to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, unless an Event of
Default has occurred and is continuing, the Borrower shall not be required to reimburse the
Administrative Agent and such Lender for more than one visit or inspection in any twelve month
period; provided, further, that when an Event of Default exists the Administrative
Agent or any Lender (or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of the Borrower at any time during normal business hours and
without advance notice.



     6.11 Use of Proceeds. The proceeds of the Loans shall be used to finance the Dividend.



     6.12 Further Assurances. Promptly upon request by the Administrative Agent, or any Lender
through the Administrative Agent, correct any material defect or error that may be discovered in
any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and duly
execute and deliver, or cause to be duly executed and delivered, to Administrative Agent such
further instruments and do and cause to be done such further acts as may be necessary or proper in
the reasonable opinion of Administrative Agent to carry out more effectively the provisions and
purposes of this Agreement or any other Loan Document.



     6.13 Compliance with Environmental Laws. Comply, and cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary
for its operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws, except to the extent that failure to so obtain, renew, conduct or undertake
could not reasonably be expected to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances in accordance with GAAP.



46









 





     6.14 Other Covenants. If at any time after the Closing Date the Borrower incurs additional
material Indebtedness in an aggregate principal amount in excess of $50,000,000 pursuant to any
agreement (any such agreement, an “Additional Debt Agreement”) containing one or more
Financial Covenants (as hereinafter defined) that are either not contained in this Agreement or are
contained in this Agreement but are more favorable to the lenders under such Additional Debt
Agreement than are the terms of this Agreement to the Lenders, this Agreement shall, without any
further action on the part of the Borrower or the Lenders, be deemed to be amended automatically to
include each such additional or more favorable Financial Covenant, unless the Required Lenders
provide written notice to the Borrower to the contrary within 30 days after having received written
notice from the Borrower of the effectiveness of such additional or more favorable Financial
Covenant. No consummation of any such Additional Debt Agreement that results in any Financial
Covenant becoming less restrictive shall be effective as a modification, amendment or waiver under
this Agreement. The Borrower further covenants promptly to execute and deliver at its expense
(including, without limitation, attorneys’ fees and expenses) an amendment to this Agreement in
form and substance satisfactory to the Required Lenders, provided that the execution and
delivery of such amendment shall not be a precondition to the effectiveness of such additional or
more favorable Financial Covenant as provided for in this Section 6.14. The provisions of
this Section 6.16 shall apply successively to each change in a Financial Covenant contained
in any such Additional Debt Agreement. For purposes of this Section 6.14, “Financial
Covenant” shall mean any covenant or equivalent provision (including, without limitation, any
default or event of default provision and definitions of defined terms used therein) requiring the
Borrower (a) to maintain any level of financial performance (including, without limitation, a
specified level of net worth, total assets, cash flow or net income), (b) not to exceed any maximum
level of Indebtedness, (c) to maintain any relationship of any component of its capital structure
to any other component thereof (including, without limitation, the relationship of indebtedness,
senior indebtedness or subordinated indebtedness to total capitalization or to net worth), or (d)
to maintain any measure of its ability to service its indebtedness (including, without limitation,
falling below any specified ratio of revenues, cash flow or net income to interest expense, rental
expense, capital expenditures and/or scheduled payments of Indebtedness).



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Loan or other Obligation (other than contingent obligations for indemnity and
the like) hereunder shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased except as contemplated by Section
7.03(b), (iii) the



47









 




direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);




     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



     (g) easements, rights-of-way, restrictions and other similar encumbrances which, in the
aggregate, do not materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) Liens securing Indebtedness permitted under Section 7.03(d); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost of the property
being acquired on the date of acquisition;



     (j) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower; provided that such Liens were not created in contemplation of such merger,
consolidation or Investment and do not extend to any assets other than those of the Person merged
into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary, and the applicable Indebtedness secured by such Lien is permitted under Section
7.03(e); and



     (k) Other Liens securing Indebtedness at no time exceeding $20,000,000 in aggregate principal
amount.



     7.02 Investments. Make any Investments, except:



     (a) Investments held by the Borrower or such Subsidiary in the form of Cash Equivalents;



48









 





     (b) (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries
outstanding on the date hereof, and (ii) so long as no Event of Default has occurred and is
continuing or would result from such Investment, additional Investments by the Borrower or its
Subsidiaries in Subsidiaries of the Borrower, provided, that Investments made pursuant to
this clause (ii) from the date hereof through and until the consummation of the Merger shall not
exceed $25,000,000 in the aggregate;



     (c) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (d) Guarantees permitted by Section 7.03;



     (e) Investments existing on the date hereof and listed on Schedule 7.02;



     (f) the purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation thereof, will be
wholly-owned directly or indirectly by the Borrower or one or more of its wholly-owned Subsidiaries
(including as a result of a merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this Section 7.02(f):




     (i) the lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired shall be substantially the same as or similar to one or more
of the principal businesses of the Borrower and its Subsidiaries (it being understood and
agreed that any business or property which is in the food and beverage industry shall
satisfy this sub-clause (i));




     (ii) the total cash and noncash consideration (including the fair market value of all
Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and
other contingent payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection therewith) paid by or
on behalf of the Borrower and its Subsidiaries for any such purchase or other acquisition,
when aggregated with the total cash and noncash consideration paid by or on behalf of the
Borrower and its Subsidiaries for all other purchases and other acquisitions made by the
Borrower and its Subsidiaries pursuant to this Section 7.02(f), shall not exceed an
aggregate amount equal to (A) from the date hereof through and until the consummation of the
Merger, $25,000,000 or (B) from the date hereof through the Maturity Date, $100,000,000;




     (iii) (A) immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing
and (B) immediately after giving effect to such purchase or other acquisition, the
Borrower and its Subsidiaries shall be in pro forma compliance with the financial covenant
set forth in Section 7.11, such compliance to be determined on the basis of the



49









 






financial information most recently delivered to the Administrative Agent and the Lenders
pursuant to Section 6.01(a) or (b) as though such purchase or other
acquisition had been consummated as of the first day of the fiscal period covered thereby;




     (iv) the Borrower shall have delivered to the Administrative Agent and each Lender, at
least five Business Days prior to the date on which any such purchase or other acquisition
is to be consummated, a certificate of a Responsible Officer of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and the Required Lenders,
certifying that all of the requirements set forth in this Section 7.02(f) have been
satisfied or will be satisfied on or prior to the consummation of such purchase or other
acquisition; provided, that after the consummation of the Merger, the Borrower shall
only be required to deliver a certificate pursuant to this Section 7.02(f)(iv) if
the aggregate consideration for such purchase or acquisition exceeds $50,000,000; and



     (g) other Investments not exceeding $50,000,000 in the aggregate; and



     (h) the Transactions.



     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding (or commitments existing) on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder;



     (c) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



     (d) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed $35,000,000;



     (e) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the date hereof
in accordance with the terms of Section 7.02(f), which Indebtedness is existing at the
time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred solely
in contemplation of such Person’s becoming a Subsidiary of the Borrower);



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     (f) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a Subsidiary of the
Borrower and Guarantees by the Borrower of Indebtedness of any Person which has Control of the
Borrower; and



     (g) unsecured Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any
time outstanding.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person;



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be
the Borrower or a wholly-owned Subsidiary;



     (c) the Borrower and the Merger Sub may consummate the Merger; and



     (d) in connection with any acquisition permitted under Section 7.02, any Subsidiary of
the Borrower may merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that the Person surviving such merger shall be
a wholly-owned Subsidiary of the Borrower.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



     (d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned
Subsidiary;



     (e) Dispositions permitted by Section 7.04;



     (f) non-exclusive licenses of IP Rights in the ordinary course of business;




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     (g) Dispositions of property pursuant to the Related Documents; and



     (h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall
exist or would result from such Disposition, (ii) the Borrower complies with Section
2.05(b)(i) with respect to the Net Cash Proceeds thereof, and (iii) the aggregate book value of
all property Disposed of in reliance on this Section 7.05(h) in any fiscal year shall not
exceed $100,000,000.


provided, however, that any Disposition pursuant to clauses (c) and (h) shall be
for fair value.




     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:



     (a) the Borrower may pay the Dividend;



     (b) each Subsidiary may make Restricted Payments to the Borrower and any other Person that
owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the
type of Equity Interest in respect of which such Restricted Payment is being made; and



     (c) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person.


The restriction on Restricted Payments set forth in this Section 7.06 shall cease to be of
any force or effect immediately following the consummation of the Merger.




     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related, incidental or similar thereto (it being understood
and agreed that any business which is in the food and beverage industry shall not violate this
Section 7.07).



     7.08 Transactions with Affiliates. Enter into any material transaction of any kind with any
Affiliate of the Borrower, other than on terms no less favorable (considered as a whole) to the
Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time
in a comparable arm’s length transaction with a Person other than an Affiliate, provided
that the foregoing restriction shall not apply to transactions (i) between or among the Borrower
and any of its wholly-owned Subsidiaries or between and among any wholly-owned Subsidiaries of the
Borrower or (ii) consummated pursuant to the Related Documents.



     7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary
to make Restricted Payments to the Borrower or to otherwise transfer property to the Borrower, (ii)
of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge
(x) contained in the Transaction Agreement which by its terms is effective until the consummation



52









 







of the Merger or (y) incurred or provided in favor of any holder of Indebtedness permitted
under Section 7.03(d) solely to the extent any such negative pledge relates to the property
financed by or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Loan, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the last day
of any fiscal quarter to be greater than 1.75:1.00.



     7.12 Amendment, Etc. of Related Documents and Indebtedness.



     (a) prior to the consummation of the Merger, amend, modify or change in any manner materially
adverse to the Lenders, any term or condition of any Related Document or give any consent, waiver
or approval thereunder materially adverse to the Lenders or (b) take any other action in connection
with any Related Document that would impair the value of the interest or rights of any Loan Party
thereunder or that would impair the rights or interests of the Administrative Agent or any Lender
in any material respect.


Notwithstanding anything herein to the contrary, from and after the Merger, nothing in this Article
VII shall directly or indirectly encumber or restrict the ability of the Borrower or any Subsidiary
to take any action (including, the payment of any dividend or distribution, the making of any loan
or advance or the transfer of any asset) if and to the extent that the existence of such
encumbrance or restriction would violate any “restrictive agreements” or similar covenant which is
contained in any revolving credit facility (as in effect on the date hereof) of any Person having
Control of the Borrower upon consummation of the Merger and which on or prior to the date hereof
has been disclosed to the Lenders in writing making reference to this provision.




ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan, or (ii) within five days after the same becomes due,
any interest on any Loan or any fee due hereunder, or (iii) within five days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10 or 6.11 or Article VII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days; or



53









 





     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower, in any other Loan Document,
or in any document delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; or



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than
the Threshold Amount or (iii) there occurs any “default” or “event of default” under any instrument
or written agreement (A) which is entered into with or for the express benefit of the
Administrative Agent and the Lenders and (B) which is entered into by any Person which is, at the
time of such occurrence, an Affiliate of the Borrower; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 45 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due,
or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 45 days after its issue or levy; or



54









 





     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of ten consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or



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



     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;
or any Loan Party or any other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or further liability or
obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or



     (k) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such
commitments shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, in each case without further act of the Administrative Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable as set forth in



55









 







the proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders (including fees and time charges for
attorneys who may be employees of any Lender) arising under the Loan Documents and amounts payable
under Article III), ratably among them in proportion to the respective amounts described in
this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations arising under the Loan Documents, ratably among the
Lenders in proportion to the respective amounts described in this clause Third payable to
them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment of Administrative Agent. Each of the Lenders hereby irrevocably designates
and appoints BMO as the administrative agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Administrative Agent, as the
administrative agent for such Lender, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of this Agreement and such other
Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or such other Loan
Documents, the Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or the other Loan Documents or otherwise exist against the Administrative
Agent.



     9.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. The



56









 







Administrative Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.



     9.03 Exculpatory Provisions. Neither the Administrative Agent nor any of its respective
trustees, officers, directors, employees, agents, attorneys-in-fact or Affiliates shall (a) be
liable to any Lender (or any Lender’s participants) for any action lawfully taken or omitted to be
taken by them or such Person under or in connection with this Agreement or the other Loan Documents
(except for its or such Person’s own gross negligence or willful misconduct), or (b) be responsible
in any manner to any Lender (or any Lender’s participants) for any recitals, statements,
representations or warranties made by the Borrower or any Subsidiary thereof or any officer thereof
contained in this Agreement or the other Loan Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or the other Loan Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan
Documents or for any failure of the Borrower or any Subsidiary thereof to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the properties, books or records of the
Borrower or any Subsidiary thereof.



     9.04 Reliance by the Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation 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 (including counsel to the Borrower or any Subsidiary thereof), independent
accountants and other experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes unless such Note shall
have been transferred in accordance with Section 10.06. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement and the other Loan
Documents unless it shall first receive such advice or concurrence of the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for herein or in the other
Loan Documents) as it deems appropriate or it shall first be indemnified to its 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. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the Notes in accordance
with a request of the Required Lenders (or such other number or percentage of the Lenders as shall
be expressly provided for herein or in the other Loan Documents), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.



     9.05 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the Administrative
Agent has received notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of 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 promptly
give notice thereof to the Lenders. The Administrative Agent shall take



57









 







such action with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) continue
making Loans to the Borrower on behalf of the Lenders in reliance on the provisions of Section
2.01 and take such other action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders.



     9.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that
no act by the Administrative Agent hereinafter taken, including any review of the affairs of the
Borrower and its Subsidiaries, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and creditworthiness of the Borrower
and its Subsidiaries. Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower and its Subsidiaries which may come into the
possession of the Administrative Agent, or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.



     9.07 Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), in proportion to each Lender’s Applicable Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time (including at any time
following the payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or the other Loan
Documents, or any documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; provided that no Lender shall be liable to the
Administrative Agent hereunder for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Administrative Agent’s gross negligence or willful misconduct or resulting solely
from transactions or occurrences that occur at a time after such Lender has assigned all of its
interests, rights and obligations under this Agreement pursuant to Section 10.06 or, in the
case of a Lender to which an assignment is made hereunder pursuant to



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Section 10.06, at a time before such assignment. The agreements in this subsection
shall survive the payment of the Notes, the Obligations and all other amounts payable hereunder and
the termination of this Agreement.




     9.08 Administrative Agent in Its Individual Capacity. The Administrative Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with the Borrower and its Subsidiaries as if the Administrative Agent were not the Administrative
Agent hereunder. With respect to its Commitments, the Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have and may exercise the same rights and powers under
this Agreement and the other Loan Documents and is subject to the same obligations and liabilities
as and to the extent set forth herein and in the other Loan Documents for any other Lender. The
terms “Lenders” or “Required Lenders” or any other term shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity as a Lender or one of the
Required Lenders.



     9.09 Successor Administrative Agent. Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a Lender as the successor, which successor agent shall, unless an Event of
Default shall have occurred and be continuing, be subject to approval by the Borrower (not to be
unreasonably withheld or delayed). If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent from among the Lenders (or, if no Lender accepts
such appointment, then Administrative Agent may appoint any other financial institution not then a
Lender). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the Administrative Agent’s resignation
hereunder, the provisions of this Article IX and Section 10.04 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.



     9.10 Notices from Administrative Agent to Lenders. The Administrative Agent shall promptly,
upon the written request from any Lender, forward to such Lender copies of any written notices,
reports or other information supplied to it by the Borrower (but which the Borrower is not required
to supply directly to the Lenders).



     9.11 Syndication Agent and Arrangers. Notwithstanding any other provision of this Agreement
or any provision of any other Loan Document, the Syndication Agent and the Arrangers are named as
such for recognition purposes only, and in their capacity as such shall have no powers, duties,
responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the
transactions contemplated hereby and thereby; it being understood and agreed that the Syndication
Agent and the Arrangers shall be entitled to all indemnification and reimbursement rights in favor
of the “Administrative Agent” as provided for under Section 9.07. Without limitation of
the foregoing, the Syndication Agent and the Arrangers shall not, solely by



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reason of this Agreement or any other Loan Documents, have any fiduciary relationship in
respect of any Lender or any other Person.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (b) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments pursuant to Section 2.05(b)) of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;



     (c) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or terminate any
election of the Required Lenders to require the Borrower to pay interest at the Default Rate;



     (d) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender; or



     (e) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender.


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



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




     (i) if to the Borrower or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


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




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



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



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR



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ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the Borrower, any Lender or any other
Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct
or actual damages).



     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



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     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any
Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms
of Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 8.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.13, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold



63









 







each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of
the transactions contemplated hereby or thereby, the Transaction or the Related Documents or, in
the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (ii) any Loan or the use or proposed use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof) or any Related Party thereof, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party,
as the case may be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) in its capacity as such, or against any Related Party acting for the
Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of
the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended



64









 







recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of Section 10.06(b),
(ii) by way of participation in accordance with the provisions of Section 10.06(d), or
(iii) by way of pledge or assignment of a security interest subject to the restrictions of
Section 10.06(f) (and any other attempted assignment or transfer by any party hereto shall
be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in Section 10.06(d) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



65









 





     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $1,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.




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




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




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that



66









 







the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




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




     (vii) No Prohibited Transaction. Notwithstanding any other provisions of this
Agreement to the contrary, no Lender may sell, assign or transfer all or any part of its
rights and obligations under this Agreement if such sale, assignment or transfer would
result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section
10.06(c), from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with Section
10.06(d).




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



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that



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(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to Section 10.06(e), the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 10.06(b). To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.13 as though it
were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with disclosure of such fact to
the Borrower and with the Borrower’s prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same



68









 







as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates
on a non-confidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from any
Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a non-confidential basis prior to disclosure by any Loan Party or any
Subsidiary thereof, provided that, in the case of information received from a Loan Party or
any such Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.



     Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender and each of its respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate
to or for the credit or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower may be contingent or unmatured or
are owed to a branch or office of such Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender and its respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender or its respective Affiliates may have. Each Lender agrees to notify the Borrower
and the Administrative Agent promptly after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of



69









 







the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Loan, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required by,
Section 10.06), all of its interests, rights and obligations under this Agreement and the
related



70









 







Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.



71









 





     (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent,
the Syndication Agent and the Arrangers are arm’s-length commercial transactions between the
Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Syndication Agent
and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent, the Syndication Agent and the Arrangers each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
other Person and (B) none of the Administrative Agent, the Syndication Agent, or the Arrangers has
any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly



72









 







set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the
Syndication Agent, the Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and its Affiliates, and
none of the Administrative Agent, the Syndication Agent, or the Arrangers has any obligation to
disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted
by law, the Borrower hereby waives and releases any claims that it may have against the
Administrative Agent, the Syndication Agent and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.



     10.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Administrative Agent, as applicable, to
identify the Loan Parties in accordance with the Act. The Borrower shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation and other information
that the Administrative Agent or such Lender requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



[Signature pages follow]




73









 





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



	 	 	 	 	 	 	 
	 	 	THE FOLGERS COFFEE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J. Douglas Gerstle
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	J. Douglas Gerstle	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President and Assistant Treasurer	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF MONTREAL, as

Administrative Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Betzaida Erdelyi
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Betzaida Erdelyi	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Director	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J. Casey Cosgrove
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	J. Casey Cosgrove	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable Percentage
	 
	Bank of Montreal
	 	$	175,000,000	 	 	 	50.000000000	%
	Bank of America, N.A.
	 	$	175,000,000	 	 	 	50.000000000	%
	Total
	 	$	350,000,000	 	 	 	100.000000000	%






Schedule 2.01




 









 





SCHEDULE 5.13




SUBSIDIARIES AND OTHER EQUITY INVESTMENTS




Schedule 5.13



[omitted]



 









 





SCHEDULE 7.01




EXISTING LIENS




Schedule 7.01



[omitted]



 









 





SCHEDULE 7.02




EXISTING INVESTMENTS




Schedule 7.02



[omitted]



 









 





SCHEDULE 7.03




EXISTING INDEBTEDNESS




Schedule 7.03



[omitted]



 









 





SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




	 	 	 
	THE FOLGERS COFFEE COMPANY:
	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 






Attention:

Telephone:

Telecopier:

Electronic Mail:                     @                    

Website Address:      www.                    

U.S. Taxpayer Identification Number:                     




ADMINISTRATIVE AGENT:



Administrative Agent’s Office

(for payments and Requests for Loans):




Bank of Montreal

BMO Agency Services

115 South LaSalle Street — 11C

Chicago, IL 60603

Attention: Kevin Houlahan

Telephone: (312) 461-2841

Telecopier: (312) 765-8078

Bank: Harris Bank N.A. (Chicago, IL)

Credit to Bank of Montreal Chicago Branch

Account No.: 183-320-1

Ref: The Folgers Coffee Company

ABA# 071000288




Other Notices as Administrative Agent:




Bank of Montreal

BMO Agency Services

115 South LaSalle Street — 11C

Chicago, IL 60603

Attention: Maria Torres

Telephone: (312) 461-5417

Telecopier: (312) 461-5955




Schedule 10.02




 









 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                     ,                     




To:      Bank of Montreal, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of October 31, 2008 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among The
Folgers Coffee Company, a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of Montreal, as Administrative Agent.




	 	 	The undersigned hereby requests (select one):





     o A Borrowing of Loans            o A conversion or continuation of Loans



	 	 	 	 	 	 	 
	1.

	 	On
	 	 	 	(a Business Day).
	 

	 	 	 	 	 	 





	 	 	 	 	 	 	 
	2.

	 	In the amount of $	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	3.

	 	Comprised of	 	 	 	 
	 

	 	 	 

[Type of Loan requested]
	 	 






	 	 	 
	4.

	 	For Eurodollar Rate Loans: with an
Interest Period of
           months.
	 
	 	 
	5.

	 	Loan proceeds should be transferred to the following account of the Borrower:
	 
	 	 
	 

	 	Bank:
	 

	 	Address:
	 

	 	Account No.:
	 

	 	ABA#:
	 

	 	Reference:






     The Borrowing, if any, requested herein complies with the provisos to the first sentence of
Section 2.01 of the Agreement.



	 	 	 	 	 	 	 
	 	 	THE FOLGERS COFFEE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






A-1

Form of Committed Loan Notice




 









 





EXHIBIT B




FORM OF NOTE




                                        




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or its registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of October
31, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of Montreal, as
Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



B-1

Form of Note




 









 





     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 	 	 
	 	 	THE FOLGERS COFFEE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






B-2

Form of Note




 









 





LOANS AND PAYMENTS WITH RESPECT THERETO




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

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





B-3

Form of Note





 











 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,,




To: Bank of Montreal, as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of October 31, 2008 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among The
Folgers Coffee Company, a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of Montreal, as Administrative Agent.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                            of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. The Borrower has delivered the year-end financial statements required by Section
6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date. Such
financial statements fairly present in all material respects the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     [Use following paragraph 1 for fiscal quarter-end financial statements]



     1. The Borrower has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.
Such financial statements fairly present in all material respects the financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at
such date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by such
financial statements.



     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



C-1

Form of Compliance Certificate




 









 





[select one:]




     [to the knowledge of the undersigned, during such fiscal period the Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—




     [to the knowledge of the undersigned, during such fiscal period the following covenants or
conditions have not been performed or observed and the following is a list of each such Default and
its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V of the
Agreement, and any representations and warranties of any Loan Party that are contained in any
document furnished at any time under or in connection with the Loan Documents are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in Section 5.05(a) of the Agreement shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 of the Agreement, including the statements in connection with which this Compliance
Certificate is delivered.



     5. The financial covenant analyses and information is set forth on Schedule 1 attached
hereto and is in form and substance consistent with past practices as previously disclosed and
approved by the Administrative Agent.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                         ,                                         .



	 	 	 	 	 	 	 
	 	 	THE FOLGERS COFFEE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






C-2

Form of Compliance Certificate




 









 








For the Quarter/Year ended                                         




SCHEDULE 1

to the Compliance Certificate

($ in 000’s)




(See attached)




C-3

Form of Compliance Certificate



[omitted]




 









 








EXHIBIT D-1




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the facility identified
below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective
Assignors (in their respective capacities as Lenders)] against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i)
and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”).
Each





 




			
	1	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are either multiple
Assignors or multiple Assignees.





D-1-1

Form of Assignment and Assumption




 









 





such sale and assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by [the][any]
Assignor.



	 	 	 	 	 	 	 
	1.

	 	Assignor[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 







	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Borrower: The Folgers Coffee Company
	 
	4.	 	Administrative Agent: Bank of Montreal, as the administrative agent under the Credit
Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of October 31, 2008, among The Folgers
Coffee Company, the Lenders from time to time party thereto, and Bank of Montreal, as
Administrative Agent
	 
	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Aggregate	 	 	 	 	 	Percentage	 	 
	 	 	 	 	Amount of	 	Amount of	 	Assigned of	 	 
	 	 	 	 	Commitment/Loans	 	Commitment/Loans	 	Commitment/	 	CUSIP
	Assignor[s]5	 	Assignee[s]6	 	for all Lenders7	 	Assigned	 	Loans8	 	Number
	 

	 	 
	 	$	 	 	$	 	 	%	 	 
	 

	 	 	 	$	 	 	$	 	 	%	 	 
	 

	 	 	 	$	 	 	$	 	 	%	 	 







	[7.	 	Trade Date:                                         ]9







 




			
	5	 	List each Assignor, as appropriate.
	 
	6	 	List each Assignee, as appropriate.
	 
	7	 	Amounts in this column and in the column immediately to
the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
	 
	8	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	9	 	To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.





D-1-2

Form of Assignment and Assumption




 









 







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




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



	 	 	 	 	 	 	 
	 	 	ASSIGNOR
	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE
	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	[Consented to and]10 Accepted:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BANK OF MONTREAL, as Administrative Agent

	 	By:	 	 	 	 
	Title:

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	[Consented to:]11
	 	 	 	 	 	 






	 	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 








 




			
	10	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
	 
	11	 	To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement.





D-1-3

Form of Assignment and Assumption




 









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




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




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents,
if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and
without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms




D-1-4

Form of Assignment and Assumption




 









 







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




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




D-1-5

Form of Assignment and Assumption




 









 





EXHIBIT D-2




FORM OF ADMINISTRATIVE QUESTIONNAIRE




[to be attached]




D-2-1

Form of Administrative Questionnaire