exv10w1






Exhibit 10.1




 

 






EXECUTION COPY









CREDIT AGREEMENT




Dated as of June 13, 2011



among



LITTELFUSE, INC.,

as Borrower,



JPMORGAN CHASE BANK, N.A.,

as Agent



and



The Other Lenders Party Hereto



BANK OF AMERICA, N.A.

as Syndication Agent




WELLS FARGO BANK, N.A. and PNC BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents




 





J.P. MORGAN SECURITIES LLC,

as Sole Lead Arranger and Sole Book Runner




 

 
























 
















TABLE OF CONTENTS




			
	 	 	 
	Section
	 	Page






Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	22	 
	1.05 References to Agreements and Laws
	 	 	22	 
	1.06 Exchange Rates; Currency Equivalents
	 	 	22	 
	1.07 Additional Alternative Currencies
	 	 	22	 
	1.08 Change of Currency
	 	 	23	 
	1.09 Letter of Credit Amounts
	 	 	23	 
	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	23	 
	 
	2.01 Committed Loans
	 	 	24	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	24	 
	2.03 Letters of Credit
	 	 	26	 
	2.04 Swing Line Loans
	 	 	33	 
	2.05 Prepayments
	 	 	35	 
	2.06 Reduction or Termination of Commitments
	 	 	36	 
	2.07 Repayment of Loans
	 	 	36	 
	2.08 Interest
	 	 	37	 
	2.09 Fees
	 	 	37	 
	2.10 Computation of Interest and Fees
	 	 	38	 
	2.11 Evidence of Debt
	 	 	38	 
	2.12 Payments Generally
	 	 	39	 
	2.13 Sharing of Payments
	 	 	40	 
	2.14 Increase in Commitments
	 	 	41	 
	2.15 Defaulting Lenders
	 	 	42	 
	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	43	 
	 
	3.01 Taxes
	 	 	43	 
	3.02 Illegality
	 	 	46	 
	3.03 Inability to Determine Rates
	 	 	46	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	46	 
	3.05 Funding Losses
	 	 	48	 
	3.06 Matters Applicable to all Requests for Compensation
	 	 	49	 
	3.07 Survival
	 	 	49	 
	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	49	 
	 
	4.01 Conditions of Initial Credit Extension
	 	 	49	 
	4.02 Conditions to all Credit Extensions and Conversions and Continuations
	 	 	50	 
	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	51	 
	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	51	 
	5.02 Authorization; No Contravention
	 	 	51	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	5.03 Governmental Authorization
	 	 	51	 
	5.04 Binding Effect
	 	 	52	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	52	 
	5.06 Litigation
	 	 	52	 
	5.07 No Default
	 	 	53	 
	5.08 Ownership of Property; Liens
	 	 	53	 
	5.09 Environmental Compliance
	 	 	53	 
	5.10 Insurance
	 	 	53	 
	5.11 Taxes
	 	 	53	 
	5.12 ERISA Compliance
	 	 	53	 
	5.13 Subsidiaries
	 	 	54	 
	5.14 Disclosure
	 	 	54	 
	5.15 Compliance with Laws
	 	 	54	 
	5.16 Margin Regulations; Investment Company Act
	 	 	54	 
	5.17 Taxpayer Identification Number; Other Identifying Information
	 	 	55	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	55	 
	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	55	 
	 
	6.01 Financial Statements
	 	 	55	 
	6.02 Certificates; Other Information
	 	 	56	 
	6.03 Notices
	 	 	57	 
	6.04 Payment of Obligations
	 	 	58	 
	6.05 Preservation of Existence, Etc.
	 	 	58	 
	6.06 Maintenance of Properties
	 	 	58	 
	6.07 Maintenance of Insurance
	 	 	58	 
	6.08 Compliance with Laws
	 	 	58	 
	6.09 Books and Records
	 	 	58	 
	6.10 Inspection Rights
	 	 	59	 
	6.11 Use of Proceeds
	 	 	59	 
	6.12 Guarantors
	 	 	59	 
	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	59	 
	 
	7.01 Liens
	 	 	59	 
	7.02 Investments
	 	 	60	 
	7.03 Indebtedness
	 	 	61	 
	7.04 Fundamental Changes
	 	 	61	 
	7.05 Dispositions
	 	 	61	 
	7.06 Restricted Payments
	 	 	62	 
	7.07 Change in Nature of Business
	 	 	62	 
	7.08 Transactions with Affiliates
	 	 	62	 
	7.09 Burdensome Agreements
	 	 	63	 
	7.10 Margin Regulations
	 	 	63	 
	7.11 Capital Expenditures
	 	 	63	 
	7.12 Financial Covenants
	 	 	63	 
	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	63	 
	 
	8.01 Events of Default
	 	 	63	 
	8.02 Remedies Upon Event of Default
	 	 	65	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	8.03 Application of Funds
	 	 	66	 
	 
	ARTICLE IX AGENT
	 	 	66	 
	 
	9.01 Appointment and Authorization of Agent
	 	 	66	 
	9.02 Rights as a Lender
	 	 	67	 
	9.03 Exculpatory Provisions
	 	 	67	 
	9.04 Reliance by Agent
	 	 	67	 
	9.05 Delegation of Duties
	 	 	68	 
	9.06 Resignation of Agent
	 	 	68	 
	9.07 Non-Reliance on Agent and Other Lenders
	 	 	69	 
	9.08 No Other Duties, Etc.
	 	 	69	 
	9.09 Agent May File Proofs of Claim
	 	 	69	 
	9.10 Guaranty Matters
	 	 	69	 
	 
	ARTICLE X MISCELLANEOUS
	 	 	70	 
	 
	10.01 Amendments, Etc.
	 	 	70	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	71	 
	10.03 No Waiver; Cumulative Remedies
	 	 	73	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	73	 
	10.05 Payments Set Aside
	 	 	74	 
	10.06 Successors and Assigns
	 	 	75	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	79	 
	10.08 Right of Set off
	 	 	80	 
	10.09 Interest Rate Limitation
	 	 	80	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	80	 
	10.11 Survival of Representations and Warranties
	 	 	80	 
	10.12 Severability
	 	 	81	 
	10.13 Replacement of Lenders
	 	 	81	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	81	 
	10.15 Waiver of Jury Trial
	 	 	82	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	82	 
	10.17 USA PATRIOT Act Notice
	 	 	83	 
	10.18 Time of the Essence
	 	 	83	 
	10.19 Judgment Currency
	 	 	83	 






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TABLE OF CONTENTS

(continued)




Page




SCHEDULES




	 	 	 

	1.01

	 	Mandatory Cost Formulae
	2.01

	 	Commitments and Pro Rata Shares
	2.03

	 	Existing Letters of Credit
	5.06

	 	Litigation
	5.09

	 	Environmental Matters
	5.13

	 	Subsidiaries
	5.18

	 	Intellectual Property Matters
	7.01

	 	Existing Liens
	7.03

	 	Existing Indebtedness
	10.02

	 	Addresses for Notices






EXHIBITS




	 	 	 

	 

	 	Form of
	A

	 	Committed Loan Notice
	B

	 	Swing Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Guaranty
	G

	 	Opinion






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CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of June 13, 2011, among
LITTELFUSE, INC., a Delaware corporation (“Borrower”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”), and JPMORGAN
CHASE BANK, N.A., as Agent.



     Borrower has requested that Lenders provide a revolving credit facility, and Lenders are
willing to do so on the terms and 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:



     “Acquired Business” means any Person or assets, as the case may be, acquired through
an Acquisition.



     “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary before giving effect to
such merger or consolidation, provided that Borrower or the Subsidiary is the surviving entity).



     “Adjusted Eurocurrency Rate” has the meaning specified in Section 2.08(a).



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the 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. “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. Without
limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of directors, managing general partners or
equivalent governing body of such Person.



     “Agent” means JPMorgan (including its branches and affiliates) in its capacity as (a)
administrative agent under any of the Loan Documents, (b) issuer of Letters of Credit hereunder,
and/or (c) as provider of Swing Line Loans hereunder, as the context requires, or any successor
Agent.



     “Agent’s Office” means Agent’s address and, as appropriate, account as specified from
time to time by Agent to Borrower and Lenders.



 









 





     “Agreed Currency” means Dollars and each Alternative Currency.



     “Aggregate Commitments” means the Commitments of all Lenders.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Canadian Dollar, Euro, Sterling, Yen, Swiss Franc
and each other currency (other than Dollars) that is approved in accordance with Section
1.07.



     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by Agent, at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



     “Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $15,000,000. The Alternative Currency Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate
received by Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Rate for	 	 
	 	 	 	 	 	 	 	 	Eurocurrency Rate	 	Applicable
	 	 	Consolidated	 	Applicable Rate for	 	Loans and	 	Rate for Base
	Pricing Level	 	Leverage Ratio	 	Commitment Fee	 	Letters of Credit	 	Rate Loans
	1

	 	≤1.00:1
	 	 	0.20	%	 	 	1.25	%	 	 	0.25	%
	2

	 	>1.00:1 but ≤1.50:1
	 	 	0.25	%	 	 	1.50	%	 	 	0.50	%
	3

	 	>1.50:1 but ≤2.00:1
	 	 	0.30	%	 	 	1.75	%	 	 	0.75	%
	4

	 	>2.00:1 but ≤2.50:1
	 	 	0.35	%	 	 	2.00	%	 	 	1.00	%
	5

	 	>2.50:1
	 	 	0.40	%	 	 	2.25	%	 	 	1.25	%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective commencing on the 5th Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if no Compliance Certificate is delivered when due in
accordance with such Section, then Pricing Level 5 shall apply commencing on the 5th
Business Day following the date such Compliance Certificate was required to have been delivered.
The Applicable Rate in effect from the Closing Date through the date which is the 5th
Business Day immediately following the date the Compliance Certificate is delivered pursuant to
Section 6.02(b) for the Borrower’s fiscal quarter ending on or about July 2, 2011 shall be
determined based upon Pricing Level 1 (or, if such Compliance Certificate demonstrates that Pricing
Levels 2, 3, 4 or 5 should be applicable during such period, such other Pricing Level shall be
applicable).



     “Applicable Time” means, with respect to any borrowings and payments in any Agreed
Currency, the local time in the place of settlement for such Agreed Currency as may be determined
by Agent to be
necessary for timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment (it being understood that, in respect of any Alternate Currency,
such local time shall mean London, England time unless otherwise notified by the Agent).



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     “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.



     “Arranger” means J.P. Morgan Securities LLC, in its capacity as sole lead arranger and
sole book runner.



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



     “Attorney Costs” means and includes all fees, expenses and disbursements of any law
firm or other external counsel and, without duplication, the allocated cost of internal legal
services and all expenses and disbursements of internal counsel.



     “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 audited consolidated balance sheet of
Borrower and its Subsidiaries for the fiscal year ended January 1, 2011, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of Agent to make L/C Credit Extensions pursuant to Section
8.02.



     “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not
result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in
such Person by a Governmental Authority or instrumentality thereof, provided, further, that
such ownership interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Person (or such Governmental Authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the Prime Rate in effect on such day and (c) the
Adjusted Eurocurrency 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 1%, provided that, for the
avoidance of doubt, the Adjusted Eurocurrency Rate for any day shall be based on the rate appearing
on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in
the Prime Rate, the Federal Funds Effective Rate or the



-3-









 




Adjusted Eurocurrency Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted Eurocurrency Rate, respectively.




     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars.



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



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



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurocurrency Rate Loan, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in the
relevant Agreed Currency in the London interbank market or the principal financial center of such
Agreed Currency (and, if the Borrowings or disbursements in respect of a Letter of Credit which are
the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in
euro, the term “Business Day” shall also exclude any day on which the TARGET payment system is not
open for the settlement of payments in Euro).



     “Canadian Dollar” means the lawful currency of the Commonwealth of Canada.



     “Cash Collateralize” has the meaning specified in Section 2.03(g)



     “Change in Law” means the occurrence, after the date of this Agreement (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), 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, rules,
guideline, requirement or directive (whether or not having the force of law) by any Governmental
Authority; provided however, that notwithstanding anything herein to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of
the date enacted, adopted, issued or implemented.



     “Change of Control” means, with respect to any Person, an event or series of events by
which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option right”), whether such right
is exercisable immediately or only after the



-4-









 







passage of time), directly or indirectly, of 20% or more of the equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a fully diluted basis
(and, taking into account all such securities that such person or group has the right to
acquire pursuant to any option right); or




     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of such Person cease to be composed of
individuals: (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent governing body
or (iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors).



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01 (or, in the case of
Section 4.01(b), waived by the Person entitled to receive the applicable payment).



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c)
purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule
2.01, or 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.



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



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency 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
D.



     “Consolidated Capital Expenditures” means, as of the last day of any fiscal quarter
for any period, the capital expenditures of Borrower and its Subsidiaries for such period, as the
same are (or would in accordance with GAAP be) set forth in the consolidated statement of changes
in financial position of Borrower and its Subsidiaries for such period.



-5-









 





     “Consolidated EBITDA” means, for any period, for Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for federal, state, local and foreign income
taxes payable by Borrower and its Subsidiaries for such period, (iii) the amount of depreciation
and amortization expense for such period, and (iv) other expenses (excluding depreciation and
amortization) of Borrower and its Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period, and minus (b) all non-cash items
increasing Consolidated Net Income for such period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than Borrower or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited liability company) in
which Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to Borrower or such Subsidiary.



     “Consolidated Interest Charges” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of Borrower and its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP.



     “Consolidated Interest Coverage Ratio” means, as of the end of any fiscal quarter, the
ratio of (a) Consolidated EBITDA for the period of the four consecutive fiscal quarters then ending
to (b) Consolidated Interest Charges paid or required to be paid during such period.



     “Consolidated Leverage Ratio” means, as of the end of any fiscal quarter, the ratio of
(a) Consolidated Funded Indebtedness as of the end of such fiscal quarter to (b) Consolidated
EBITDA for the period of the four consecutive fiscal quarters then ending.



     “Consolidated Net Income” means, for any period, for Borrower and its Subsidiaries on
a consolidated basis, the net income of Borrower and its Subsidiaries (excluding extraordinary
gains but including extraordinary losses) for that period.



     “Consolidated Net Worth” means, as of any date of determination, for Borrower and its
Subsidiaries on a consolidated basis, Shareholders’ Equity of Borrower and its Subsidiaries on that
date.



     “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” has the meaning specified in the definition of “Affiliate”.



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     “Credit Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Loans and its L/C Exposure and Swing Line Exposure at
such time.



     “Credit Extension” means each of the following: (a) a Borrowing, and (b) an L/C Credit
Extension.



     “Credit Party” means the Agent, the L/C Issuer, the Swing Line Lender or any other
Lender.



     “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 (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws.



     “Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit or Swing Line Loans or (iii) pay over to any
Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause
(i) above, such Lender notifies the Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified
and including the particular default, if any) has not been satisfied, (b) has notified the Borrower
or any Credit Party in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such Lender’s good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three (3) Business
Days after request by a Credit Party, acting in good faith, to provide a certification in writing
from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such
obligations) to fund prospective Loans and participations in then outstanding Letters of
Credit and Swing Line Loans under this Agreement, provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Agent, or (d) has become the subject
of a Bankruptcy Event.



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



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



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by Agent at such time on the basis of the
Spot Rate (determined



-7-









 




in respect of the most recent Revaluation Date) for the purchase of Dollars
with such Alternative Currency.




     “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)).



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “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 Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
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 Borrower within the meaning of Section 414(b) or (c) of the Code (and 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 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



-8-









 




operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by 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 Plan amendment as a termination under Sections 4041 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 might reasonably be expected to constitute
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 Borrower or any ERISA Affiliate.




     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to (or, in the case of Loans denominated in Sterling, on the day of) the
commencement of such Interest Period, for deposits in the relevant currency (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is
not available at such time for any reason, then the “Eurocurrency Rate” for such Interest Period
shall be the rate per annum determined by the Agent to be the rate at which deposits in the
relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or converted by JPMorgan and
with a term equivalent to such Interest Period would be offered by JPMorgan’s principal London
office (or other JPMorgan branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 11:00 a.m. (London time) two
Business Days prior to (or, in the case of Loans denominated in Sterling, on the day of) the
commencement of such Interest Period.



     “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Committed Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans.



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



     “Excluded Taxes” means, with respect to the Agent, any Lender, or any other recipient
of any payment to be made by or on account of any obligation of Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and franchise taxes imposed
on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal office is located or,
in the case of any Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in
which Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by Borrower under Section 10.13), any withholding tax resulting from any law
in effect (including FATCA) on the date such Foreign Lender at the time such Foreign Lender becomes
a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except 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 Borrower with respect to such withholding tax pursuant to Section 3.01(a).



-9-









 





     “Existing Credit Agreement” has the meaning set forth in Section 4.01(a)(ix).



     “Existing Letters of Credit” means the letters of credit described on Schedule
2.03 hereto, including all renewals, extensions and amendments thereto.



     “Existing Loan Agreement” means the Loan Agreement dated as of September 29, 2008,
among the Borrower, the banks party thereto, and JPMorgan Chase Bank, N.A. as administrative agent,
as it may be amended, restated, modified or supplemented from time to time.



     “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any regulations or official interpretations thereof.



     “Federal Funds Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.



     “Fee Letter” has the meaning specified in Section 2.09(b).



     “Foreign Lender” means, with respect to Borrower, any Lender that is organized under
the laws of a jurisdiction other than that in which 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.



     “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



     “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 business.



     “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 any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, 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) and any group or
body charged with setting financial accounting or regulatory capital rules or standards (including,
without limitation, the Financial Accounting Standards Board, the Bank for International
Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to
any of the foregoing).



-10-









 





     “Guarantors” means collectively, the Domestic Subsidiaries (present and future) of
Borrower.



     “Guaranty” means the Guaranty made by the Guarantors in favor of Agent on behalf of
Lenders, in form and substance satisfactory to Agent.



     “Guarantee” means, as to any Person, any (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. 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, 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, all of the following,
whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




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




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




     (f) capital leases and Synthetic Lease Obligations;



-11-









 






     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, 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. The amount of any net obligation under
any Swap Contract on any date shall be Swap Termination Value thereof as of such date. 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.



     “Indemnified Liabilities” has the meaning specified in Section 10.04.



     “Indemnified Taxes” means Taxes that are imposed on or with respect to any payment
made by any Loan Parties under this Agreement or any Loan Document other than Excluded Taxes and
Other Taxes.



     “Indemnitees” has the meaning specified in Section 10.04.



     “Information” has the meaning specified in Section 10.08.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency 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 (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by Borrower
in its Committed Loan Notice; provided that:




     (a) 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;




     (b) 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




     (c) no Interest Period shall extend beyond the Maturity Date.



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, Borrower’s internal controls over
financial reporting, in each case as described in the Securities Laws.



-12-









 





     “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, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. 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.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.



     “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.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share. All L/C Advances shall
be denominated in Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Exposure” means, at any time, the sum of (a) the aggregate undrawn Outstanding
Amount of Letters of Credit at such time plus (b) the aggregate Outstanding of all Unreimbursed
Amounts. The L/C Exposure of any Lender at any time shall be its Pro Rata Share of the total L/C
Exposure at such time.



     “L/C Issuer” means JPMorgan in its capacity as issuer of Letters of Credit hereunder;
provided that, solely with respect to the Existing Letters of Credit, any reference to “L/C
Issuer” shall include Bank of America, N.A. as the issuer of the Existing Letters of Credit.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn face
amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.



-13-









 





     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes Agent in its capacity as issuer of Letters of Credit and provider of
Swing Line Loans hereunder.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such on Schedule 10.02, or such other office or offices as a Lender may from
time to time notify Borrower and Agent.



     “Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit
may be a commercial letter of credit or a standby letter of credit. Letters of Credit may be
issued in Dollars or in an Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by Agent.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Sublimit” means an amount equal to $15,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “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 of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, 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 Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, the Fee Letter, and the Guaranty.



     “Loan Parties” means, collectively, Borrower and each Person (other than Agent or any
Lender) executing a Loan Document. The term Loan Party shall include, without limitation, each
Guarantor.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual and contingent),
condition (financial or otherwise) or prospects of 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 (a) June 13, 2016, or (b) such earlier date upon which the
Aggregate Commitments may be terminated in accordance with the terms hereof.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which 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.



-14-









 





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



     “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
or Letter of Credit, 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.



     “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 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 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, 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 (i) with respect to Committed Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on
such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount
of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Agent in accordance with banking industry rules on interbank compensation, and (b) with respect to
any amount denominated in an Alternative Currency, the rate of interest per annum at which
overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for such day by a
branch or Affiliate of JPMorgan in the applicable offshore interbank market for such currency to
major banks in such interbank market.



     “Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.



     “Participant” has the meaning specified in Section 10.07(d).



     “Participating Member State” means each state so described in any EMU Legislation.




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     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “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 Borrower or any ERISA Affiliate or to which Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.



     “Permitted Acquisition” means an Acquisition which meets each of the following
conditions: (i) the prior, effective written consent or approval to such Acquisition of the board
of directors or equivalent governing body of the Acquired Business (and/or its parent entity) is
obtained; (ii) the Acquired Business represents a line of business substantially the same, similar
or, complimentary to the lines of business carried on by Borrower and its Subsidiaries on the date
hereof; (iii) immediately before and after giving effect to such Acquisition, no Default or Event
of Default shall exist, (iv) immediately before and after giving effect to such Acquisition,
Borrower shall be in compliance with the financial tests set forth in Section 7.12 (for
this purpose the Consolidated Leverage Ratio shall be determined on a pro forma basis as if the
Acquisition had been consummated at the beginning of the period of the four consecutive fiscal
quarters of Borrower then most recently ended), (v) Borrower shall have forwarded to Agent such
additional information regarding such Acquisition or the Acquired Business as Agent shall have
requested, and (vi) Borrower shall have furnished to Agent a certificate of its chief financial
officer to the effect that the foregoing conditions are satisfied (such certificate to be
accompanied by a computation of the financial tests set forth in Section 7.12 and to be
satisfactory to Agent in all respects).



     “Person” means any individual, trustee, corporation, general partnership, limited
partnership, limited liability company, joint stock company, trust, unincorporated organization,
bank, business association, firm, joint venture or Governmental Authority.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by 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.



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



     “Pro Rata Share” means, with respect to each Lender, at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the
amount of the Commitment of such Lender at such time and the denominator of which is the amount of
the Aggregate Commitments at such time; provided that, in the case of Section 2.15
when a Defaulting Lender shall exist, “Pro Rata Share” shall mean the percentage of the Aggregate
Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the commitment of each Lender to make Loans and the obligation of Agent to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, then the Pro Rata Share of
each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to
such termination and after giving effect to any subsequent assignments made pursuant to Section
10.07, giving effect to any Lenders status as a Defaulting Lender at the time of determination.
The initial Pro Rata Share of each Lender is set forth



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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.




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



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of Borrower as prescribed by the Securities Laws.



     “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.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



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



     “Required Lenders” means, as of any date of determination, two or more Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and
the obligation of Agent to make L/C Credit Extensions have been terminated pursuant to Section
8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the
aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Lender for purposes of this definition);
provided that the Commitment of, and the portion of the Total Outstandings held or deemed
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, treasurer or assistant treasurer of a Loan Party (and, solely for purposes of notices
given pursuant to Article II, any other officer or employee of the applicable Loan Party so
designated by any of the foregoing officers in a notice to the 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
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 Borrower’s stockholders, partners or members (or the equivalent
Person thereof).



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i) the
date that is two (2) Business Days prior to the date of a Borrowing of a Eurocurrency Rate Loan
denominated in an Alternative Currency, (ii) the date that is two (2) Business Days prior to the
date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant
to Section 2.02, and (iii) such additional dates as Agent shall determine or the Required
Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i)
each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date
of an amendment of any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any



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payment by Agent of any Letter of Credit denominated in an Alternative Currency, and (iv) such
additional dates as Agent shall determine or the Required Lenders shall require.




     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions in the relevant
Alternative Currency.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the United States Securities and Exchange Commission.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



     “Shareholders’ Equity” means, as of any date of determination for Borrower and its
Subsidiaries on a consolidated basis, shareholders’ equity as of that date determined in accordance
with GAAP.



     “SPC” has the meaning specified in Section 10.06(h).



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



     “Spot Rate” means, on any day, with respect to any Alternative Currency, the rate at
which such Alternative Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., Applicable Time, on such date on the Reuters World Currency Page for such Alternative
Currency. In the event that such rate does not appear on any Reuters World Currency Page, the
Spot Rate with respect to such Alternative Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be reasonably selected by the Agent
or, in the event no such service is selected, such Spot Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Agent for such
Alternative Currency on the London market at 11:00 a.m., Applicable Time, on such date for the
purchase of Dollars with such Alternative Currency, for delivery two Business Days after such date
(or, in the case of Loans denominated in Sterling, on such date); provided, that if at the
time of any such determination, for any reason, no such spot rate is being quoted, the Agent, after
consultation with the Borrower, may use any reasonable method it deems appropriate to determine
such rate, and such determination shall be conclusive absent manifest error.



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



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FRB. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in any reserve, liquid asset or similar requirement.




     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “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 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).



     “Swing Line” means the uncommitted and discretionary revolving credit facility made
available by Agent pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Exposure” means, at any time, the aggregate principal amount of all Swing
Line Loans outstanding at such time. The Swing Line Exposure of any Lender at any time shall be
its Pro Rate Share of the total Swing Line Exposure at such time.



     “Swing Line Lender” means JPMorgan in its capacity as provider of Swing Line Loans
hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



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     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Swiss Franc” means the lawful currency of Switzerland.



     “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).



     “TARGET” means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Agent to be a suitable replacement) for the
settlement of payments in Euro.



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



     “Threshold Amount” means $2,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



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



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



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



     “Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).



     “Yen” and “¥” mean the lawful currency of Japan.



     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 meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.




     (b) (i) The words “herein”, “hereto”, “hereof” and
“hereunder” and words of similar import when used in any Loan Document shall refer
to such Loan Document as a whole



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and not to any particular provision thereof; (ii) Article, Section, Exhibit and
Schedule references are to the Loan Document in which such reference appears; (iii) the term
“including” is by way of example and not limitation; and (iv) the term
“documents” includes any and all instruments, documents, agreements, certificates,
notices, reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.




     (c) 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.”




     (d) 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) 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) 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 Borrower or the Required
Lenders shall so request, Agent, Lenders and 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) Borrower shall provide to Agent and 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 Borrower and its Subsidiaries or to the determination
of any amount for 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
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.




     (d) Notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios
referred to herein shall be made (i) without giving effect to any election under Accounting
Standards Codification 825-10-25 (or any other Accounting Standards Codification or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness
or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein
and (ii) without giving effect to any treatment of Indebtedness in respect of convertible
debt instruments under Accounting Standards Codification 470-20 (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar result or effect)
to value any such Indebtedness in



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a reduced or bifurcated manner as described therein, and such Indebtedness shall at all
times be valued at the full stated principal amount thereof.



     1.04 Rounding. Any financial ratios required to be maintained by any Loan Party
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 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



     1.06 Exchange Rates; Currency Equivalents.




     (a) Agent shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by Agent.




     (b) Wherever in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or
extension of a Letter of Credit, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of
Credit is denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by Agent.



     1.07 Additional Alternative Currencies.




     (a) Borrower may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed in the
definition of “Alternative Currency;” provided that such requested currency is a
lawful currency (other than Dollars) that is readily available and freely transferable and
convertible into Dollars. In the case of any such request with respect to the making of
Eurocurrency Rate Loans, such request shall be subject to the approval of Agent and Lenders;
and in the case of any such request with respect to the issuance of Letters of Credit, such
request shall be subject to the approval of Agent.




     (b) Any such request shall be made to Agent not later than 10:00 a.m., Chicago time, 20
Business Days prior to the date of the desired Credit Extension (or such other time or date
as may be agreed by Agent in its sole discretion). In the case of any such request
pertaining to



-22-









 







Eurocurrency Rate Loans, Agent shall promptly notify each Lender thereof. Each Lender
(in the case of any such request pertaining to Eurocurrency Rate Loans) shall notify Agent,
not later than 10:00 a.m., Chicago time, ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the
issuance of Letters of Credit, as the case may be, in such requested currency.




     (c) Any failure by a Lender to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Lender to permit
Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested
currency. If Agent and all Lenders consent to making Eurocurrency Rate Loans in such
requested currency, Agent shall so notify Borrower and such currency shall thereupon be
deemed for all purposes to be an Alternative Currency hereunder for purposes of any
Committed Borrowings of Eurocurrency Rate Loans; and if Agent consents to the issuance of
Letters of Credit in such requested currency, Agent shall so notify Borrower and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder
for purposes of any Letter of Credit issuances. If Agent shall fail to obtain consent to
any request for an additional currency under this Section 1.07, Agent shall promptly
so notify Borrower.



     1.08 Change of Currency.




     (a) Each obligation of Borrower to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency
after the date hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London interbank
market for the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on which such
member state adopts the Euro as its lawful currency; provided that if any Committed
Borrowing in the currency of such member state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such Committed Borrowing, at the
end of the then current Interest Period.




     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as Agent may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.




     (c) Each provision of this Agreement also shall be subject to such reasonable changes
of construction as Agent may from time to time specify to be appropriate to reflect a change
in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



     1.09 Letter of Credit Amounts. Unless otherwise specified, all references herein to
the amount of a Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of the
maximum face amount of such Letter of Credit after giving effect to all increases thereof
contemplated by such Letter of Credit or the Letter of Credit Application therefor, whether or not
such maximum face amount is in effect at such time.



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS



-23-









 





     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Committed Loan”) to Borrower in
Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (iii) the
aggregate Outstanding Amount of all Committed Loans and L/C Obligations denominated in Alternative
Currencies shall not exceed the Alternative Currency Sublimit. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.




     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon Borrower’s
irrevocable notice to Agent in accordance with the terms of this Section 2.02(a).
Each such notice must be received by Agent (i) not later than 10:00 a.m., Chicago time,
three (3) Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of
Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans (via request by
telephone, promptly followed by confirmation in a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of Borrower), (ii) not later
than 10:00 a.m., Applicable Time, four (4) Business Days (or five (5) Business Days in the
case of a Special Notice Currency) prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies (via a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer
of Borrower, promptly followed by telephonic confirmation of such request), and (iii) not
later than 12:00 noon, Chicago time, on the requested date of any Borrowing of Base Rate
Committed Loans, which notice may be given by telephone (or via a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of Borrower). Each
telephonic notice by Borrower pursuant to this Section 2.02(a)(iii) must be
confirmed promptly by delivery to Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of Borrower. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 (or, if
such Borrowing is denominated in (x) Yen, ¥100,000,000 or (y) an Alternative Currency other
than Yen, 1,000,000 units of such currency) or a whole multiple of $500,000 (or, if such
Borrowing is denominated in (x) Yen, ¥50,000,000 or (y) an Alternative Currency other than
Yen, 500,000 units of such currency) in excess thereof. Each Committed Borrowing of or
conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written, as applicable) shall specify (i) whether Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a
continuation of Eurocurrency 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 Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v)
if applicable, the duration of the Interest Period with respect thereto, and (vi) the
currency of the Committed Loans to be borrowed. If Borrower fails to specify a currency in
a



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Committed
Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made
in Dollars. If Borrower fails to specify a Type of Committed Loan in a Committed Loan
Notice or if Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans;
provided, however, that in the case of a failure to timely request a
continuation of Committed Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an Interest Period of
one month. Any 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 Eurocurrency Rate
Loans. If Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency
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. No Committed Loan may be
converted into or continued as a Committed Loan denominated in a different currency, but
instead must be prepaid in the original currency of such Committed Loan and reborrowed in
the other currency.




     (b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each
Lender of the amount (and currency) of its Pro Rata Share of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by Borrower, Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Committed Loans denominated in a currency other than Dollars, in each case
as described in the preceding subsection. In the case of a Committed Borrowing, each Lender
shall make the amount of its Committed Loan available to Agent in Same Day Funds at Agent’s
Office for the applicable currency not later than 1:00 p.m., Chicago time, in the case of
any Committed Loan denominated in Dollars, and not later than the Applicable Time specified
by the Agent in the case of any Committed Loan in an Alternative Currency, in each case on
the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), Agent shall make all funds so received
available to Borrower in like funds as received by Agent either by (i) crediting the account
of Borrower on the books of JPMorgan 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) Agent by Borrower; provided, however, that if, on the date of
the Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by
Borrower there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such L/C Borrowings, and
second, to Borrower as provided above.




     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan.
During the existence of a Default, no Loans may be requested as, converted to or continued
as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the
consent of the Required Lenders, and the Required Lenders may demand that any or all of the
then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid,
or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last
day of the then current Interest Period with respect thereto.




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



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



     2.03 Letters of Credit.



          (a) The Letter of Credit Commitment.





     (i) Subject to the terms and conditions set forth herein, (A) Agent agrees, in
reliance upon the agreements of the other Lenders set forth in this Section
2.03: (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit
denominated in Dollars or in one or more Alternative Currencies for the account of
Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drafts under
the Letters of Credit; and (B) Lenders severally agree to participate in Letters of
Credit issued for the account of Borrower; provided that Agent shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit, and
no Lender shall be obligated to participate in, any Letter of Credit if as of the
date of such L/C Credit Extension, (w) the Total Outstandings would exceed the
Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed such Lender’s Commitment, (y) the
Outstanding Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit, or (z) the aggregate Outstanding Amount of all L/C Obligations and all
Committed Loans denominated in Alternative Currencies would exceed the Alternative
Currency Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. The Existing Letters of Credit shall be deemed to be “Letters
of Credit” issued on the Closing Date for all purposes of the Loan Documents.




     (ii) Agent shall be under no obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain Agent from
issuing such Letter of Credit, or any Law applicable to Agent or any request
or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over Agent shall prohibit, or request that Agent
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon Agent with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which Agent
is not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon Agent any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which Agent in good faith deems
material to it;




     (B) subject to Section 2.03(b)(iv), the expiry date of such
requested Letter of Credit would occur more than twelve months after the
date of issuance, unless the Required Lenders have approved such expiry
date;



-26-









 






     (C) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date; provided, that a Letter
of Credit may expire up to one year beyond the Maturity Date so long as the
Borrower cash collateralizes such Letter of Credit (on terms reasonably
satisfactory to the Agent and in an amount equal to 105% of the face amount
of such Letter of Credit) no later than seven days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day);




     (D) the issuance of such Letter of Credit would violate one or more
policies of Agent;




     (E) such Letter of Credit is in an initial amount less than $100,000,
in the case of a commercial Letter of Credit, or $500,000, in the case of a
standby Letter of Credit, or is to be used for a purpose other than those
specified in Section 6.11;




     (F) Agent does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency; or




     (G) such Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency, unless all Lenders have consented
thereto.




     (iii) Agent shall be under no obligation to amend any Letter of Credit if (A)
Agent would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.



          (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.





     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of Borrower delivered to Agent in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
Borrower. Such Letter of Credit Application must be received by Agent (A) not later
than 10:00 a.m., Chicago time, at least two Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any Letter of Credit
denominated in Dollars, and (B) not later than 10:00 a.m., Chicago time, at least
ten Business Days prior to the proposed issuance date or date of amendment, as the
case may be, of any Letter of Credit denominated in an Alternative Currency; or in
each case such later date and time as Agent may agree in a particular instance in
its sole discretion. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to Agent: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F)
the full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as Agent may require. In the case of
a request for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to Agent (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the



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nature of the proposed amendment; and (D) such other matters as Agent may
require. Additionally, Borrower shall furnish to Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, as
Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application by Agent at the
address set forth in Schedule 10.02 for receiving Letter of Credit
Applications and related correspondence, if the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the terms and
conditions hereof, Agent shall, on the requested date, issue a Letter of Credit for
the account of Borrower or enter into the applicable amendment, as the case may be,
in each case in accordance with Agent’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from Agent a risk
participation in such Letter of Credit in an amount equal to the product of such
Lender’s Pro Rata Share times the amount of such Letter of Credit.




     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, Agent will also deliver to Borrower a true and complete copy of such Letter
of Credit or amendment.




     (iv) If Borrower so requests in any applicable Letter of Credit Application,
Agent may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must
permit Agent to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Non- Extension
Notice Date”) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by Agent, Borrower shall
not be required to make a specific request to Agent for any such extension. Once an
Auto-Extension Letter of Credit has been issued, Lenders shall be deemed to have
authorized (but may not require) Agent to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit Expiration
Date; provided, however, that Agent shall not permit any such
extension if (A) Agent has determined that it would have no obligation at such time
to issue such Letter of Credit in its extended form under the terms hereof (by
reason of Section 2.03(a)(ii) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) at least seven (7) Business Days before
the Non- Extension Notice Date (1) from the Required Lenders that they have elected
not to permit such extension or (2) from any Lender or Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then satisfied.
Notwithstanding anything to the contrary contained herein, Agent shall have no
obligation to permit the extension of any Auto-Extension Letter of Credit at any
time.



          (c) Drawings and Reimbursements; Funding of Participations.





     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
drawing under such Letter of Credit, Agent shall notify Borrower thereof. In the
case of a Letter of Credit denominated in an Alternative Currency, Borrower shall
reimburse Agent in such Alternative Currency, unless (i) Agent (at its option) shall
have specified in such notice that it will require reimbursement in Dollars, or (ii)
in the absence of any



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such requirement for reimbursement in Dollars, Borrower shall have notified
Agent promptly following receipt of the notice of drawing that Borrower will
reimburse Agent in Dollars. In the case of any such reimbursement in Dollars of a
drawing under a Letter of Credit denominated in an Alternative Currency, Agent shall
notify Borrower of the Dollar Equivalent of the amount of the drawing promptly
following the determination thereof. Not later than 10:00 a.m., Chicago time, on
the date of any payment by Agent under a Letter of Credit to be reimbursed in
Dollars, or the Applicable Time on the date of any payment by Agent under a Letter
of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor
Date”), Borrower shall reimburse Agent in an amount equal to the amount of such
drawing and in the applicable currency. If Borrower fails to so reimburse Agent by
such time, Agent shall promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an Alternative
Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Pro
Rata Share thereof. In such event, Borrower shall be deemed to have requested a
Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if promptly confirmed in writing; provided that the lack
of such a prompt confirmation shall not affect the conclusiveness or binding effect
of such notice.




     (ii) Each Lender (including Agent in its capacity as a Lender) shall upon any
notice pursuant to Section 2.03(c)(i) make funds available to Agent at
Agent’s Office for Dollar-denominated payments in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 12:00 p.m., Chicago time, on the
Business Day specified in such notice by Agent, whereupon, subject to the provisions
of Section 2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Committed Loan to Borrower in such amount.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, Borrower shall be
deemed to have incurred from Agent an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender’s payment to Agent pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse Agent for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of Agent.




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to
reimburse Agent for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right



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which such Lender may have against Agent, Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing. No
such making of an L/C Advance shall relieve or otherwise impair the obligation of
Borrower to reimburse Agent for the amount of any payment made by Agent under any
Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to Agent any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(ii), Agent shall be
entitled to recover from such Lender, on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to Agent at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of Agent
submitted to any Lender with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.



          (d) Repayment of Participations.





     (i) At any time after Agent has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if Agent receives any payment in respect of
the related Unreimbursed Amount or interest thereon (whether directly from Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by Agent), Agent
will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which such
Lender’s L/C Advance was outstanding) in Dollars and in the same funds as those
received by Agent.




     (ii) If any payment received by Agent pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section
10.06 (including pursuant to any settlement entered into by Agent in its
discretion), each Lender shall pay to Agent its Pro Rata Share thereof on demand of
Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the applicable Overnight Rate
from time to time in effect.




     (e) Obligations Absolute. The obligation of Borrower to reimburse Agent for
each drawing under each Letter of Credit, and to repay each L/C Borrowing, shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto;




     (ii) the existence of any claim, counterclaim, set-off, defense or other right
that Borrower may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), Agent or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or



-30-









 







any statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;




     (iv) any payment by Agent under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by Agent under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of such Letter of Credit, including any arising
in connection with any proceeding under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of
the relevant Alternative Currency to Borrower or in the relevant currency markets
generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Borrower.




No payment by Borrower to Agent of any reimbursement obligation or L/C Borrowing shall
constitute a waiver by Borrower of any of its rights under Section 2.03(f).
Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with Borrower’s
instructions or other irregularity, Borrower will immediately notify Agent. Borrower shall
be conclusively deemed to have waived any such claim against Agent and its correspondents
unless such notice is given as aforesaid.




     (f) Role of Agent. Each Lender and Borrower agree that, in paying any drawing
under a Letter of Credit, Agent shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of Agent, any
of its Related Parties nor any correspondents, participants or assignees of Agent shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii)
the due execution, effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement. None of
Agent, any of its Related Parties nor any correspondent, participant or assignee of Agent,
shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.03(e); provided, however, that anything in such clauses
to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be
liable to Borrower, to the extent, but only to the extent, of any direct damages (as opposed
to consequential or exemplary damages, claims in respect of which are hereby waived by
Borrower to the extent permitted by applicable law) suffered by Borrower which Borrower
proves (as finally determined by a court of competent jurisdiction) were caused by Agent’s
willful misconduct or gross negligence or Agent’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight



-31-









 







draft and certificate(s) strictly complying with the terms and conditions of such
Letter of Credit. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Agent (as finally determined by a court
of competent jurisdiction), the Agent shall be deemed to have exercised care in each such
determination. In furtherance and not in limitation of the foregoing, Agent may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and Agent shall not
be responsible for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason.




     (g) Cash Collateral. Upon the request of Agent, (i) if Agent has honored any
full or partial drawing request under any Letter of Credit and such drawing has resulted in
an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, (A) any Letter of
Credit for any reason remains outstanding and partially or wholly undrawn, or (B) any amount
remains available to be drawn under any Letter of Credit by reason of the operation of Rule
3.14 of the ISP, Borrower shall immediately Cash Collateralize the then Outstanding Amount
of all L/C Obligations (in an amount equal to 105% of such Outstanding Amount determined as
of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may
be). Agent may, at any time and from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations. Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of
this Section 2.03, Section 2.05 and Section 8.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to Agent, for the benefit of
Agent, as issuer of Letters of Credit and Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance
satisfactory to Agent (which documents are hereby consented to by Lenders). Derivatives of
such term have corresponding meanings. Borrower hereby grants to Agent, for the benefit of
Agent, as issuer of Letters of Credit and Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at
JPMorgan.




     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by Agent
and Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce
(the “ICC”) at the time of issuance shall apply to each commercial Letter of
Credit.




     (i) Letter of Credit Fees. Borrower shall pay to Agent for the account of each
Lender in accordance with its Pro Rata Share a letter of credit fee for each Letter of
Credit equal to the Applicable Rate times the Dollar Equivalent of the actual daily
maximum amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such letter of credit fees
shall be computed on a quarterly basis in arrears. Such letter of credit fees shall be due
and payable on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the actual daily amount of each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.



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     (j) Fronting Fee and Documentary and Processing Charges Payable to Agent.
Borrower shall pay directly to Agent for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit in the amount specified in the Fee Letter, payable on the
Dollar Equivalent of the actual daily maximum amount available to be drawn under such Letter
of Credit (whether or not such maximum amount is then in effect under such Letter of
Credit), due and payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In
addition, Borrower shall pay directly to Agent for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of
Agent relating to letters of credit as from time to time in effect, in Dollars or such
Alternative Currency as shall be separately agreed. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.




     (k) Conflict with Letter of Credit Application. In the event of any conflict
between the terms hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.




     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, Borrower shall be obligated to reimburse Agent for any and all
drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of Borrower, and
that Borrower’s business derives substantial benefits from the businesses of such
Subsidiaries.



     2.04 Swing Line Loans.




     (a) The Swing Line. Subject to the terms and conditions set forth herein,
Agent agrees to consider in its sole and absolute discretion making loans in Dollars (each
such loan, a “Swing Line Loan”) to Borrower from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Pro Rata Share of Outstanding Amount of Committed Loans and L/C
Obligations of Agent in its capacity as a Lender of Committed Loans, may exceed the amount
of Agent’s Commitment in its capacity as a Lender; provided, however, that
after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment. The Swing Line is a discretionary,
uncommitted facility and Agent may terminate or suspend the Swing Line at any time in its
sole discretion upon notice to Borrower which notice may be given by Agent before or after
Borrower requests a Swing Line Loan hereunder. Each Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from Agent a risk participation
in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share
times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
Borrower’s irrevocable notice to Agent, which may be given by telephone, unless Agent has
notified, or after receiving notice of a Swing Line Borrowing notifies, Borrower that the
Swing Line has been or is terminated or suspended as provided in Section 2.04(a),
Each such notice must be received by Agent not later than 2:00 p.m., Chicago time, on the
requested borrowing



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date, and shall specify (i) the amount to be borrowed, which shall be a minimum of
$500,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Unless
one or more of the applicable conditions specified in Article IV is not then satisfied or
the Swing Line has been or is terminated or suspended by Agent as provided above, then,
subject to the terms and conditions hereof, Agent will, not later than 4:00 p.m., Chicago
time, on the borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to Borrower at its office by crediting the account of Borrower on
the books of Agent in Same Day Funds. Lenders agree that Agent may agree to modify the
borrowing procedures used in connection with the Swing Line in its discretion and without
affecting any of the obligations of Lenders hereunder.



          (c) Refinancing of Swing Line Loans.





     (i) Agent at any time in its sole and absolute discretion (including if Agent
has terminated or suspended the Swing Line as provided above) may request, on behalf
of Borrower (which hereby irrevocably authorizes Agent to so request on its behalf),
that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s
Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request
shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02.
Agent shall furnish Borrower with a copy of the applicable Committed Loan Notice.
Each Lender shall make an amount equal to its Pro Rata Share of the amount specified
in such Committed Loan Notice available to Agent in Same Day Funds at Agent’s Office
for Dollar-denominated payments not later than 12:00 p.m., Chicago time, on the day
specified in such Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to have
made a Base Rate Committed Loan to Borrower in such amount.




     (ii) If for any reason any Swing Line Loan cannot be financed by such a
Committed Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Committed Loans submitted by Agent as set forth herein, shall be deemed to
be a request by Agent that each of Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to Agent pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Lender fails to make available to Agent any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), Agent shall be
entitled to recover from such Lender, on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to Agent at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of Agent
submitted to any Lender with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A)



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any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against Agent, Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing. No such funding of risk
participations shall relieve or otherwise impair the obligation of Borrower to repay
Swing Line Loans, together with interest as provided herein.



          (d) Repayment of Participations.





     (i) At any time after any Lender has purchased and funded a risk participation
in a Swing Line Loan, if Agent receives any payment on account of such Swing Line
Loan, Agent will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as
those received by Agent.




     (ii) If any payment received by Agent in respect of principal or interest on
any Swing Line Loan is required to be returned by Agent under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by Agent in its discretion), each Lender shall pay to Agent
its Pro Rata Share thereof on demand of Agent, plus interest thereon from the date
of such demand to the date such amount is returned, at a rate per annum equal to the
applicable Overnight Rate.




     (e) Interest for Account of Agent. Agent shall be responsible for invoicing
Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section 2.04 to refinance such
Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of Agent.



     2.05 Prepayments.




     (a) Borrower may, upon notice to Agent, at any time or from time to time voluntarily
prepay Committed Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by Agent not later than (A) 10:00 a.m., Chicago time, three
(3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Dollars, (B) 10:00 a.m., Applicable Time, four (4) Business Days (or five (5), in the case
of prepayment of Loans denominated in Special Notice Currencies) prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (C) 1:00
p.m., Chicago time, on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof; and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
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 Committed Loans to be prepaid, and, if Eurocurrency Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment.
If such notice is given by Borrower, 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 Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts



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required pursuant to Section 3.05. Each such prepayment shall be applied to
the Committed Loans of Lenders in accordance with their respective Pro Rata Shares.




     (b) Borrower may, upon notice to Agent, at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by Agent not later than 2:00 p.m., Chicago time, on
the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by Borrower, Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein.




     (c) If for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, Borrower shall immediately prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in
full of the Committed Loans and Swing Line Loans the Total Outstandings exceed the Aggregate
Commitments then in effect.




     (d) If Agent notifies Borrower at any time that the Outstanding Amount of all Loans and
L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal
to the Alternative Currency Sublimit then in effect, then, within two Business Days after
receipt of such notice, Borrower shall prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such
date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in
effect. Agent may, at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to protect against
the results of further exchange rate fluctuations.




     (e) No optional prepayment of Committed Loans denominated in an Alternative Currency
may be made other than on the last day of the applicable Interest Period for such Committed
Loans, unless Lenders consent thereto.



     2.06 Reduction or Termination of Commitments. Borrower may, upon notice to Agent,
terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate
Commitments; provided that (i) any such notice shall be received by Agent not later than
10:00 a.m., five Business Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof, (iii) Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments and (iv) if, after giving effect to any reduction of the Aggregate
Commitments, the Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. Agent will promptly notify Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Once reduced in accordance with this
Section, the Aggregate Commitments may not be increased. The amount of any such Aggregate
Commitment reduction shall not be applied to the Alternative Currency Sublimit or the Letter of
Credit Sublimit unless otherwise specified by Borrower. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Pro Rata Share. All commitment
fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid
on the effective date of such termination.



     2.07 Repayment of Loans.



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     (a) Borrower shall repay to Lenders on the Maturity Date the aggregate principal amount
of Committed Loans outstanding on such date.




     (b) Borrower shall repay to Agent each Swing Line Loan on the earlier of the Maturity
Date and the first date after such Swing Line Loan is made that is the 15th or last day of a
calendar month and is at least two (2) Business Days after such Swing Line Loan is made;
provided that on each date that a Committed Borrowing is made, the Borrower shall
repay all Swing Line Loans then outstanding.



     2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the sum of
(A) (1) the Eurocurrency Rate for such Interest Period multiplied (without
duplication of the Borrower’s obligations under Section 3.04) by (2) the Statutory
Reserve Rate (such product, the “Adjusted Eurocurrency Rate”), plus (B) the
Applicable Rate plus, without duplication, (C) in the case of a Eurocurrency Rate
Loan of any Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State, the Mandatory Cost; (ii) each Base Rate Committed 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 plus the Applicable Rate; and (iii) each
Swing Line 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 plus the Applicable
Rate.




     (b) If any amount payable by 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, 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. Furthermore, while any Event of Default exists (or after acceleration), Borrower
shall pay interest on the principal amount of all outstanding Obligations at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. 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.




     (d) For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or
fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains
fewer days than the actual number of days in the calendar year of calculation, such rate of
interest or fee rate shall be expressed as a yearly rate by multiplying such rate of
interest or fee rate by the actual number of days in the calendar year of calculation and
dividing it by the number of days in the deemed year, (ii) the principle of deemed
reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the
rates of interest stipulated herein are intended to be nominal rates and not effective rates
or yields.



     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of
Section 2.03:



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     (a) Commitment Fee. Borrower shall pay to Agent for the account of each Lender
in accordance with its Pro Rata Share, a commitment fee in Dollars equal to the Applicable
Rate times the actual daily amount by which the Aggregate Commitments exceed the sum
of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Borrower acknowledges that Swing Line
Loans outstanding from time to time are not considered Committed Loans in calculating the
commitment fee.




     (b) Other Fees. Borrower shall pay to Arranger and Agent for their own
respective accounts, in Dollars, fees in the amounts and at the times specified in the
letter agreement, dated May 6, 2011 (the “Fee Letter”), among Borrower, Arranger and
Agent. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by JPMorgan’s prime rate shall be made on the basis of a
year of 365 or 366 days, as the case may be. All other computations of interest and all fees shall
be made on the basis of a year of 360 days and the actual number of days elapsed, (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365 day year),
or, in the case of interest in respect of Committed Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such market practice (and,
for the avoidance of doubt, computations of interest in respect of Committed Loans denominated in
Sterling shall be made on the basis of a year of 365 days). 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.



     2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by Agent in the ordinary course of
business. The accounts or records maintained by Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by Lenders to 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 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 Agent in
respect of such matters, the accounts and records of Agent shall control in the absence of
manifest error. Upon the request of any Lender made through Agent, Borrower shall execute
and deliver to such Lender (through 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 the
applicable Loans and payments with respect thereto.




     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and
Swing Line Loans.




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In the event of any conflict between the accounts and records maintained by Agent
and the accounts and records of any Lender in respect of such matters, the accounts and
records of Agent shall control in the absence of manifest error.



     2.12 Payments Generally.




     (a) All payments to be made by Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or set off. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans denominated in
an Alternative Currency, all payments by Borrower hereunder shall be made to Agent, for the
account of the respective Lenders to which such payment is owed, at the applicable Agent’s
Office in Dollars and in Same Day Funds not later than 2:00 p.m., Chicago time, on the date
specified herein. Except as otherwise expressly provided herein, all payments by Borrower
hereunder with respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Agent’s Office in such Alternative Currency and in Same
Day Funds not later than the Applicable Time specified by Agent on the dates specified
herein. If, for any reason, Borrower is prohibited by any Law from making any required
payment hereunder in an Alternative Currency, Borrower shall make such payment in Dollars in
the Dollar Equivalent of the Alternative Currency payment amount. Agent will promptly
distribute to each Lender its Pro Rata Share (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 Agent (i) after 1:00 p.m., Chicago time, in the case of payments in
Dollars, or (ii) after the Applicable Time specified by Agent in the case of payments in an
Alternative Currency, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.




     (b) If any payment to be made by 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.




     (c) Unless Borrower or any Lender has notified Agent, prior to the date any payment is
required to be made by it to Agent hereunder, that Borrower or such Lender, as the case may
be, will not make such payment, Agent may assume that Borrower or such Lender, as the case
may be, has timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto. If and to
the extent that such payment was not in fact made to Agent in Same Day Funds, then:




     (i) if Borrower failed to make such payment, each Lender shall forthwith on
demand repay to Agent the portion of such assumed payment that was made available to
such Lender in Same Day Funds, together with interest thereon in respect of each day
from and including the date such amount was made available by Agent to such Lender
to the date such amount is repaid to Agent in Same Day Funds, at the applicable
Overnight Rate from time to time in effect; and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on
demand pay to Agent the amount thereof in Same Day Funds, together with interest
thereon for the period from the date such amount was made available by Agent to
Borrower to the date such amount is recovered by Agent (the “Compensation
Period”) at a rate per annum equal to the applicable Overnight Rate from time to
time in effect. If such Lender pays such amount to Agent, then such amount shall
constitute such Lender’s



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Committed Loan included in the applicable Borrowing. If such Lender does not
pay such amount forthwith upon Agent’s demand therefor, Agent may make a demand
therefor upon Borrower, and Borrower shall pay such amount to Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to the rate
of interest applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment or to prejudice
any rights which Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.



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




     (d) If any Lender makes available to 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 Borrower by Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, Agent
shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.




     (e) The obligations of Lenders hereunder to make Committed Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not joint. The
failure of any Lender to make any Committed Loan or to fund any such participation 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 Committed Loan or purchase its participation.




     (f) 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.



     2.13 Sharing of Payments. If any Lender shall, by exercising any right of set off
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Agent of such fact, and (b) purchase (for cash at face value) participations
in the Committed Loans and subparticipations in L/C Obligations and Swing Line 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
principal of and accrued interest on their respective Committed Loans and other amounts owing them,
provided that:




     (i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations or
subparticipations 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 (x) any
payment made by Borrower pursuant to and in accordance with the express terms of
this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Committed Loans or
subparticipations in L/C



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Obligations or Swing Line Loans to any assignee or participant, other than to
Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).



     2.14 Increase in Commitments.




     (a) Provided there exists no Default or Event of Default, upon notice to the Agent
(which shall promptly notify the then-existing Lenders and potential new Lenders), Borrower
may from time to time request an increase in the Aggregate Commitments up to an aggregate
principal amount of $75,000,000. At the time of sending such notice, Borrower (in
consultation with the Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days from the date
of delivery of such notice to Lenders).




     (b) Each Lender shall notify the Agent within such time period whether or not it agrees
to increase its Commitment and, if so, the amount of such increase. Any Lender not
responding within such time period shall be deemed to have declined to increase its
Commitment. The Agent shall notify Borrower and each Lender of Lenders’ responses to each
request made hereunder. The Borrower may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance satisfactory to the
Agent and its counsel.




     (c) If the Aggregate Commitments are increased in accordance with this Section
2.14, Agent and Borrower shall determine the effective date (the “Increase Effective
Date”) and the final allocation of the Commitments of such increase. Agent shall
promptly notify Borrower and Lenders of the final allocation of such increase and the
Increase Effective Date.




     (d) As a condition precedent to such increase, Borrower shall deliver to Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies
for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to such
increase, and, (ii) in the case of Borrower, including a Compliance Certificate
demonstrating pro forma compliance with Section 7.12 after giving effect to such
increase and (iii) certifying that, before and after giving effect to such increase, the
representations and warranties contained in Article V are true and correct on and as of the
Increase Effective Date (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 Section 2.14, the representation
and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be
deemed to refer to the most recent statement furnished pursuant to clauses (a), (b) and (c),
respectively, of Section 6.01) and no Default or Event of Default exists. If
requested by any Lender, Borrower shall deliver new or amended Notes reflecting the
increased Commitment of such Lender holding or requesting a Note. Agent shall distribute an
amended Schedule 2.01 (which shall be deemed incorporated into this Agreement), to
reflect any changes therein resulting from such increase.




     (e) Borrower shall prepay any Committed Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05) to the
extent necessary to keep the outstanding Committed Loans ratable with any revised Pro Rata
Shares arising from any nonratable increase in the Commitments under this Section; provided
that in the case of any Committed Loans denominated in an Alternative Currency, no such
prepayment may be made other than on the last day of the applicable Interest Period for such
Committed Loans, unless Lenders consent thereto.




     (f) This Section shall supersede any provisions in Section 10.01 to the
contrary.



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     2.15 Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:




     (a) fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.09(a);




     (b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included
in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to
Section 10.01 except that the Commitment of such Defaulting Lender may not be
increased or extended without the consent of such Defaulting Lender);




     (c) if any Swing Line Exposure or L/C Exposure exists at the time such Lender becomes a
Defaulting Lender then:




     (i) all or any part of the Swing Line Exposure and L/C Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Pro Rata Shares but only to the extent the sum of
all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swing
Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting
Lenders’ Commitments;




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one (1) Business Day following
notice by the Agent (x) first, prepay such Swing Line Exposure and (y)
second, cash collateralize for the benefit of the L/C Issuer only the
Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after
giving effect to any partial reallocation pursuant to clause (i) above) in
accordance with the procedures set forth in Section 2.03(g) for so long as
such L/C Exposure is outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section
2.03(i) with respect to such Defaulting Lender’s L/C Exposure during the period
such Defaulting Lender’s L/C Exposure is cash collateralized;




     (iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Lenders pursuant to Section
2.09(a) and Section 2.03(i) shall be adjusted in accordance with such
non-Defaulting Lenders’ Pro Rata Shares; and




     (v) if all or any portion of such Defaulting Lender’s L/C Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the L/C Issuer or any other Lender
hereunder, all letter of credit fees payable under Section 2.03(i) with
respect to such Defaulting Lender’s L/C Exposure shall be payable to the L/C Issuer
until and to the extent that such L/C Exposure is reallocated and/or cash
collateralized; and




     (d) so long as such Lender is a Defaulting Lender, the Swing Line Lender shall not be
required to fund any Swing Line Loan and the L/C Issuer shall not be required to issue,
amend or increase any Letter of Credit, unless it is satisfied that the related exposure and
the Defaulting



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Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance
with Section 2.15(c), and participating interests in any such newly made Swing Line
Loan or any newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 2.15(c)(i) (and such
Defaulting Lender shall not participate therein).




     (e) If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur
following the date hereof and for so long as such event shall continue or (ii) the Swing
Line Lender or the L/C Issuer has a good faith belief that any Lender has defaulted in
fulfilling its obligations under one or more other agreements in which such Lender commits
to extend credit, the Swing Line Lender shall not be required to fund any Swing Line Loan
and the L/C Issuer shall not be required to issue, amend or increase any Letter of Credit,
unless the Swing Line Lender or the L/C Issuer, as the case may be, shall have entered into
arrangements with the Borrower or such Lender, satisfactory to the Swing Line Lender or the
L/C Issuer, as the case may be, to defease any risk to it in respect of such Lender
hereunder. In the event that the Agent, the Borrower, the Swing Line Lender and the L/C
Issuer each agrees that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swing Line Exposure and L/C Exposure of the
Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such
date such Lender shall purchase at par such of the Loans of the other Lenders (other than
Swing Line Loans) as the Agent shall determine may be necessary in order for such Lender to
hold such Loans in accordance with its Pro Rata Share.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY



     3.01 Taxes. 




     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if Borrower shall be required by applicable law to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Agent or Lender, as the case
may be, receives an amount equal to the sum it would have received had no such deductions
been made, (ii) Borrower shall make such deductions and (iii) Borrower shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable
law.




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




     (c) Indemnification by Borrower. Borrower shall indemnify the Agent and each
Lender, within 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) paid by the 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. A certificate as to the
amount of such payment or liability



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delivered to Borrower by a Lender (with a copy to the Agent), or by the Agent on its
own behalf or on behalf of a Lender shall be conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall
deliver to the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect
to payments hereunder or under any other Loan Document shall deliver to Borrower (with a
copy to the Agent), at the time or times prescribed by applicable law or reasonably
requested by Borrower or the Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or
at a reduced rate of withholding. In addition, any Lender, if requested by Borrower or the
Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by Borrower or the Agent as will enable Borrower or the Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements.




     (f) Without limiting the generality of the foregoing, any Foreign Lender shall deliver
to Borrower and the 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 Borrower or the Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies 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) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) 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 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) duly completed
copies of Internal Revenue Service Form W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit Borrower to determine the withholding or deduction required
to be made.




Without limiting the foregoing, if a payment made to a Lender under this Agreement would be
subject to U.S. Federal withholding tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower and the Agent, at the time or times prescribed by law and at such time or times
reasonably



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requested by the Borrower or the Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and
the Agent to comply with its obligations under FATCA, to determine that such Lender has or
has not complied with such Lender’s obligations under FATCA and, as necessary, to determine
the amount to deduct and withhold from such payment. Solely for purposes of this paragraph,
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.




Without limiting the obligations of the Lenders set forth above regarding delivery of
certain forms and documents to establish each Lender’s status for U.S. withholding tax
purposes, each Lender agrees promptly to deliver to the Agent or Borrower, as the Agent or
Borrower shall reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing authorities under
the Laws of any other jurisdiction, duly executed and completed by such Lender, as are
required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to
such Lender outside of the U.S. by Borrower pursuant to this Agreement or otherwise to
establish such Lender’s status for withholding tax purposes in such other jurisdiction.
Each Lender shall promptly (i) notify the Agent of any change in circumstances which would
modify or render invalid any such claimed exemption or reduction, and (ii) take such steps
as shall not be 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 such jurisdiction that Borrower make any
deduction or withholding for taxes from amounts payable to such Lender. Additionally,
Borrower shall promptly deliver to the Agent or any Lender, as the Agent or such Lender
shall reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such documents and forms required by any relevant taxing authorities under the
Laws of any jurisdiction, duly executed and completed by Borrower, as are required to be
furnished by such Lender or the Agent under such Laws in connection with any payment by the
Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan
Documents, with respect to such jurisdiction.




     (g) Treatment of Certain Refunds. If the 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 Borrower or with respect to which Borrower has paid additional
amounts pursuant to this Section, it shall pay to Borrower an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid, by Borrower
under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the 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 Borrower, upon the request of the Agent or such Lender,
agrees to repay the amount paid over to Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Agent or such Lender in the
event the Agent or such Lender is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the Agent or any Lender to
make available its tax returns (or any other information relating to its taxes that it deems
confidential) to Borrower or any other Person.




     (h) Lender Indemnity. Each Lender shall severally indemnify the Agent for any
Taxes (but, in the case of any Indemnified Taxes or Other Taxes, only to the extent that the
Borrower has not already indemnified the Agent for such Indemnified Taxes or Other Taxes and
without limiting the obligation of the Borrower to do so) attributable to such Lender that
are paid



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or payable by the Agent in connection with this Agreement or any Loan Documents and
any reasonable expenses arising therefrom or with respect thereto, whether or not such
amounts were correctly or legally imposed or asserted by the relevant Governmental
Authority. The indemnity under this Section 3.01(g) shall be paid within 10 days
after the Agent delivers to the applicable Lender a certificate stating the amount so paid
or payable by the Agent. Such certificate shall be conclusive of the amount so paid or
payable absent manifest error.



     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 Eurocurrency Rate Loans (whether denominated in Dollars or
an Alternative Currency), 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 or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to Borrower through Agent, any obligation
of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies
or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice,
Borrower shall, upon demand from such Lender (with a copy to Agent), prepay or, if applicable and
such Loans are denominated in Dollars, convert all such Eurocurrency 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 Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such
prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or
converted and all amounts due under Section 3.05 in accordance with the terms thereof due
to such prepayment or conversion. Each Lender agrees to designate a different Lending Office if
such designation will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.



     3.03 Inability to Determine Rates. If Agent determines in connection with any
request for a Eurocurrency Rate Loan or a conversion to or continuation thereof for any reason that
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to Lenders of funding such Eurocurrency Rate
Loan, Agent will promptly so notify Borrower and all Lenders. Thereafter, the obligation of
Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be
suspended until Agent revokes such notice. Upon receipt of such notice, Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have converted such request
into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs; Reserves on Eurocurrency 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 (A) any



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reserve requirement contemplated by Section 3.04(e) and (B)
the requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the Agent;




     (ii) subject any Lender or the Agent or any other recipient of any payment to
be made by or on account of any obligation of the Loan Parties under this Agreement
or any Loan Documents to any Taxes on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto (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 the Agent);




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of
England and/or the Financial Services Authority or the European Central Bank in
relation to its making, funding or maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or the Agent or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made
by such Lender or any Letter of Credit or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender or the
Agent of making or maintaining any Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Agent of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or receivable by
such Lender or the Agent hereunder (whether of principal, interest or any other amount)
then, upon request of such Lender or the Agent, Borrower will (without duplication of the
interest rate components reflected in the rate of interest for Eurocurrency Rate Loans
pursuant to Section 2.08(a)) pay to such Lender or the Agent, as the case may be, such
additional amount or amounts as will compensate such Lender or the Agent, as the case may
be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the Agent determines that any
Change in Law affecting such Lender or the Agent or any Lending Office of such Lender or
such Lender’s or the Agent’s holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or the Agent’s capital
or on the capital of such Lender’s or the Agent’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the Agent, to a
level below that which such Lender or the Agent or such Lender’s or the Agent’s holding
company could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Agent’s policies and the policies of such Lender’s or the Agent’s holding
company with respect to capital adequacy), then from time to time Borrower will pay to such
Lender or the Agent, as the case may be, such additional amount or amounts as will
compensate such Lender or the Agent or such Lender’s or the Agent’s holding company for any
such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender or the Agent
setting forth the amount or amounts necessary to compensate such Lender or the Agent or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section
and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay
such Lender or the



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Agent, as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.




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




     (e) Additional Reserve Requirements. Borrower shall pay to each Lender, as
long as such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory authority imposed
in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate
Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs allocated to such
Commitment or Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan, provided Borrower shall have received at least 10
days’ prior notice (with a copy to the Agent) of such additional interest or costs from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest or costs shall be due and payable 10 days from receipt of
such notice.



     3.05 Funding Losses. Upon demand of any Lender (with a copy to Agent) from time to
time, 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); or




     (b) any failure by 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 Borrower; or




     (c) any failure by Borrower to make payment of any Loan or drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due
date or any payment thereof in a different currency; or




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


including any loss of anticipated profits, any foreign exchange losses 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 or from the performance
of any foreign exchange contract. Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.







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




     3.06 Matters Applicable to all Requests for Compensation. A certificate of Agent or
any Lender claiming compensation under this Article III and setting forth the calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, Agent or such Lender may use any reasonable averaging
and attribution methods.



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



ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS



     4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make
its initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:




     (a) Agent’s receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, 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 satisfactory to Agent and its legal counsel:




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




     (ii) a Note executed by Borrower in favor of each Lender requesting a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as 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 to which such Loan Party is a party;




     (iv) such documents and certificates as Agent may reasonably require to
evidence that each Loan Party is duly organized or formed and that Borrower and each
Guarantor is, validly existing and in good standing in its jurisdiction of
organization;




     (v) a favorable opinion of counsel to the Loan Parties acceptable to Agent,
addressed to Agent and each Lender, as to such matters concerning the Loan Parties
and the Loan Documents in form and substance satisfactory to Agent;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection with
the execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and such consents,
licenses and




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     approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer of Borrower certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the date of
the Audited Financial Statements that has had or could reasonably be expected to
have a Material Adverse Effect, and (C) a calculation of the financial covenants set
forth in Section 7.12 as of the last day of the fiscal quarter of Borrower
ended April 2, 2011;




     (viii) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;




     (ix) evidence that the commitments under each of (a) the Credit Agreement dated
as of July 21, 2006, as amended or modified, among Borrower, Bank of America, N.A.,
as agent and a syndicate of lenders (the “Existing Credit Agreement”) and
(b) the Existing Loan Agreement have been or concurrently with the Closing Date are
being terminated, and that all loans and obligations thereunder have been paid in
full (except to the extent being so repaid with the initial Loans) and any and all
liens thereunder shall have been terminated; and




     (x) such other assurances, certificates, documents, consents or opinions as
Agent or the Required Lenders reasonably may require.




     (b) Any fees required to be paid on or before the Closing Date shall have been paid.




     (c) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney
Costs as shall constitute its reasonable estimate of Attorney Costs 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 Borrower and Agent).



     Without limiting the generality of the provisions of Section 9.04, 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 Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Credit Extensions and Conversions and Continuations. The
obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of
Eurocurrency Rate Loans) is subject to the following conditions precedent:




     (a) The representations and warranties of Borrower and each other Loan Party contained
in Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith, shall be true and correct on and as
of the date of such Credit Extension, conversion or continuation, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case
they shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in subsections (a), (b)
and (c) of Section 5.05 shall be



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deemed to refer to the most recent statements furnished pursuant to clauses (a), (b)
and (c), respectively, of Section 6.01.




     (b) No Default shall exist, or would result from such proposed Credit Extension,
conversion or continuation.




     (c) Agent shall have received a Request for Credit Extension in accordance with the
requirements hereof.




     (d) In the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial, political
or economic conditions or currency exchange rates or exchange controls which in the
reasonable opinion of Agent would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency.




     (e) Agent shall have received, in form and substance satisfactory to it, such other
assurances, certificates, documents or consents related to the foregoing as Agent or the
Required Lenders reasonably may require.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans)
submitted by Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




Borrower represents and warrants to Agent and Lenders that:



     5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a)
is duly organized or formed, validly existing and 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 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 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 licenses, 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
each Loan Party of each Loan Document to which such Person is party, have been duly authorized by
all necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, (i) any Contractual Obligation to which such
Person is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization. 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



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required in connection with the execution, delivery or performance by, or enforcement against,
any Loan Party 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 each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto 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; (ii) fairly present the financial condition of Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.




     (b) The Audited Financial Statements and the Borrower’s Form 10-K filed with the SEC
for the fiscal year ended January 1, 2011 show all material indebtedness and other
liabilities, direct or contingent, of Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness as required to be
disclosed under the applicable rules and regulations promulgated or approved by the SEC.




     (c) The unaudited consolidated financial statements of Borrower and its Subsidiaries
dated April 2, 2011, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (ii) fairly present the financial condition
of Borrower and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.




     (d) Since the date of the Audited Financial Statements, 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.




     (e) To the best knowledge of Borrower, no Internal Control Event exists or has occurred
since the date of the Audited Financial Statements that has resulted in or could reasonably
be expected to result in a misstatement in any material respect, in any financial
information delivered or to be delivered to the Agent or the Lenders, of (i) covenant
compliance calculations provided hereunder or (ii) the assets, liabilities, financial
condition or results of operations of Borrower and its Subsidiaries on a consolidated basis.



     5.06 Litigation. Except as specifically disclosed in Schedule 5.06 hereto,
there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against 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 any of the transactions contemplated hereby, or (b) either
individually or in the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect and there has been no adverse change in



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the status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters
described on Schedule 5.06.




     5.07 No Default. Neither Borrower nor any Subsidiary 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 Property; Liens. Each of Borrower and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in, all real property
necessary or used 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 property of Borrower and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.



     5.09 Environmental Compliance. Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof Borrower has reasonably
concluded that, except as specifically disclosed in Schedule 5.09 hereto, such
Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



     5.10 Insurance. The properties of Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts,
after giving effect to any self-insurance compatible with the following standards, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Borrower or the applicable Subsidiary
operates.



     5.11 Taxes. Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state 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
Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance.




     (a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. 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 Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification. 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 best knowledge of Borrower, 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



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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.




     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability that could reasonably be expected to have a Material
Adverse Effect; (iii) neither 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); (iv) neither
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 Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries. As of the Closing Date, 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 a Loan Party in the amounts specified on Part (a) of Schedule
5.13 free and clear of all Liens. Borrower has no equity investments in any other corporation
or entity other than those specifically disclosed in Part(b) of Schedule 5.13.



     5.14 Disclosure. Borrower has disclosed to Agent and Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, 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 (whether in writing or orally) by or on behalf of any Loan Party in
connection with any Loan Document to Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material misstatement of fact or omits
to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.



     5.15 Compliance with Laws. Borrower, each Subsidiary and each other Loan Party 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.



     5.16 Margin Regulations; Investment Company Act. (a) 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. Following the application of the
proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value
of the assets (either of Borrower only or of Borrower and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 7.01 or Section 7.05 or subject to any
restriction contained in any agreement or instrument between Borrower and any Lender or any
Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e)
will be margin stock.



     (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.



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     5.17 Taxpayer Identification Number; Other Identifying Information. The true and
correct U.S. taxpayer identification number of (i) Borrower is set forth on Schedule 10.02
and (ii) each subsidiary that is a Domestic Subsidiary and a Guarantor on the Closing Date is
set forth on Schedule 5.13.



     5.18 Intellectual Property; Licenses, Etc. 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. To the best knowledge of Borrower, no slogan or
other advertising device, product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by Borrower or any Subsidiary infringes upon any rights held by
any other Person. Except as specifically disclosed in Schedule 5.18, no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge of Borrower,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



ARTICLE VI




AFFIRMATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02,
6.03 and 6.11) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to Agent a sufficient number of copies for
delivery by Agent to each Lender, of the following, in form and detail satisfactory to 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 Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of income or operations,
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, audited and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall not be
subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit or with respect to the absence of any material
misstatement and (ii) an opinion of such Registered Public Accounting Firm independently
assessing Borrower’s internal controls over financial reporting in accordance with Item 308
of SEC Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of Sarbanes-Oxley
expressing a conclusion that contains no statement that there is a material weakness in such
internal controls, except for such weaknesses that could not reasonably be expected to have
a Material Adverse Effect;




     (b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal quarter and for the portion of Borrower’s fiscal year then ended, setting forth in each case in
comparative



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form 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 and
certified by a Responsible Officer of Borrower as fairly presenting the financial condition,
results of operations, shareholders equity and cash flows of Borrower and its Subsidiaries
in accordance with GAAP, subject only to normal year-end audit adjustments and the absence
of footnotes; and




     (c) as soon as available, but in any event not later than the last Business Day in
February of each year, a copy of the plan and forecast (including a projected consolidated
and consolidating balance sheet, income statement and funds flow statement) of Borrower and
its Subsidiaries for such year.



     6.02 Certificates; Other Information. Deliver to Agent a sufficient number of
copies for delivery to each Lender, of the following, in form and detail satisfactory to Agent and
the Required Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of the Registered Public Accounting Firm certifying
such financial statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default or, if any such Default shall exist, stating the
nature and status of such event;




     (b) 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 Borrower;




     (c) promptly after any request by the Agent or any Lender, 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 Borrower by independent accountants in
connection with the accounts or books of Borrower or any Subsidiary, or any audit of any of
them;




     (d) 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 Borrower,
and copies of all annual, regular, periodic and special reports and registration statements
which Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to Agent
pursuant hereto; and




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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (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 Borrower posts such documents, or provides a link thereto on
Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any,
to which each Lender and the Agent have access (whether a commercial, third-party website or
whether sponsored by the Agent); provided that: (i) Borrower shall deliver paper copies of
such documents to the Agent or any Lender that requests Borrower to deliver such paper copies until
a written request to cease delivering paper copies is given by the Agent or such Lender and (ii)
Borrower shall notify the Agent and each Lender (by telecopier or electronic mail) of the posting
of any such documents and provide to the Agent by electronic mail electronic versions
(i.e., soft copies)



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of such documents. Notwithstanding anything contained herein, in every
instance Borrower shall be required to provide paper copies of the Compliance Certificates required
by Section 6.02(b) to the Agent. Except for such Compliance Certificates, the 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 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.




     Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make available to the
Lenders and the Agent materials and/or information provided by or on behalf of Borrower hereunder
(collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to Borrower or its securities) (each, a “Public Lender”). 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,”
Borrower shall be deemed to have authorized the Agent, the Arranger, and the Lenders to treat
Borrower Materials as not containing any material non-public information with respect to Borrower
or their respective securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent 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
Investor;” and (z) the Agent and the Arranger shall be entitled to treat Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.” Notwithstanding the foregoing, Borrower shall not be under any
obligation to mark Borrower Materials “PUBLIC.”



     6.03 Notices. Promptly notify Agent and each Lender:




     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or 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 Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;




     (c) the occurrence of any ERISA Event;




     (d) of any material change in accounting policies or financial reporting practices by
Borrower or any Subsidiary; and




     (e) of the determination by the Registered Public Accounting Firm providing the opinion
required under Section 6.01(a)(ii) (in connection with its preparation of such
opinion) or Borrower’s determination at any time of the occurrence or existence of any
Internal Control Event.


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






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with particularity any and all provisions of this Agreement and any other Loan Document that have
been breached.




     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 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 (i) in a transaction permitted by Section 7.04 or 7.05, and
(ii) in the case of Subsidiaries, where the failure to do so could not reasonably be expected to
have a Material Adverse Effect; (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; (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; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days’ prior notice to Agent
of termination, lapse or cancellation of such insurance.



     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)
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 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 Borrower or such Subsidiary, as the case may be.



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     6.10 Inspection Rights. Permit representatives and independent contractors of Agent
and each Lender 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 Borrower and at such reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance notice to Borrower; provided,
however, that when a Default exists Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the expense of Borrower
at any time during normal business hours and without advance notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i) to finance
Permitted Acquisitions; (ii) for working capital, (iii) for capital expenditures, (iv) to refinance
certain Indebtedness existing on the Closing Date and (v) for other general corporate purposes not
in contravention of any Law or of any Loan Document.



     6.12 Guarantors. Notify Agent at the time that any Person becomes a Domestic
Subsidiary, and promptly thereafter (and in any event within 30 days), cause such Person to (a)
become a Guarantor by executing and delivering Agent a counterpart of the Guaranty or such other
document as Agent shall deem appropriate for such purpose, and (b) deliver to Agent documents of
the types referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause (a)), all in form, content and
scope reasonably satisfactory to Agent.



ARTICLE VII




NEGATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
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 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 in accordance with GAAP;



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     (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 bonds (other than bonds related to judgments or
litigation), 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 affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case 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) or securing appeal or other surety bonds relating to
such judgments; and




     (i) liens securing Indebtedness permitted under Section 7.03(e);
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 or fair market value, whichever is lower, of the property being acquired on
the date of acquisition.



     7.02 Investments. Make any Investments, except:




     (a) Investments held by Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities;




     (b) Permitted Acquisitions;




     (c) Investments of Borrower in any Guarantor which is a wholly-owned Domestic
Subsidiary and Investments of any Guarantor in Borrower or in another Guarantor which is a
wholly-owned Subsidiary;




     (d) Investments of any Foreign Subsidiary in any other Foreign Subsidiary or in
Borrower or any wholly-owned Guarantor;




     (e) Investments of Borrower or any Guarantor in any Foreign Subsidiary;
provided, however, that such Investments to the extent made after the
Closing Date shall not at any time exceed 50% of Consolidated Net Worth at such time;




     (f) 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; and




     (g) Guarantees permitted by Section 7.03;


it being understood that the Guarantee by Borrower of obligations of Subsidiaries that are
permitted to be incurred under this Agreement shall not be deemed Investments restricted by this
Section 7.02.





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




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
hereto 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) Guarantees of Borrower or any Subsidiary in respect of Indebtedness otherwise
permitted hereunder of Borrower or any Subsidiary;




     (d) obligations (contingent or otherwise) of 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;




     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase
money obligations for fixed 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 10% of Consolidated Net Worth at
such time; and




     (f) such additional unsecured Indebtedness incurred by Borrower or any Subsidiary as
would not cause the Consolidated Leverage Ratio to exceed 3.0 to 1.0 as of the date of
incurrence.



     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) Borrower, provided that 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, and further
provided that if a Guarantor is merging with another Subsidiary, the Guarantor shall
be the continuing or surviving Person; and




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



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



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     (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 Borrower or to a wholly-owned
Subsidiary, provided that if the transferor of such property is a Guarantor, the transferee
thereof must either be Borrower or a Guarantor;




     (e) Dispositions permitted by Section 7.04; and




     (f) additional Dispositions provided that (i) such additional Dispositions shall not in
any fiscal year exceed 15% of Borrower’s consolidated assets as of the beginning of such
fiscal year, and (ii) no Default or Event of Default shall exist immediately before or after
giving effect thereto;



     provided, however, that any Disposition pursuant to clauses (a) through (f)
shall be for fair market 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) each Subsidiary may make Restricted Payments to Borrower and to wholly-owned
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to
Borrower and any Subsidiary and to each other owner of capital stock or other equity
interests of such Subsidiary on a pro rata basis based on their relative ownership
interests);




     (b) 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; and




     (c) Borrower may declare or pay cash dividends to its stockholders and purchase, redeem
or otherwise acquire shares of its capital stock or warrants, rights or options to acquire
any such shares for cash, provided that immediately after giving effect to such proposed
action, no Default or Event of Default shall exist.


To the extent Borrower shall have purchased or otherwise acquired shares of its capital stock
pursuant to this Section 7.06, nothing herein shall prohibit the cancellation or retirement
by Borrower of such shares.




     7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by Borrower and its Subsidiaries on
the date hereof.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to Borrower or such Subsidiary as would be obtainable
by Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate,



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provided that the foregoing restriction shall not apply to transactions between or
among Borrower and any of its wholly-owned Subsidiaries or between and among any wholly-owned
Subsidiaries.




     7.09 Burdensome Agreements. Enter into 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 Borrower or any Guarantor or to otherwise transfer property to Borrower or
any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of
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 incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(e) so long as such negative pledge is on then-market terms and otherwise customary for
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 Margin Regulations. Use the proceeds of any Credit Extension, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
of the United States) 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 Capital Expenditures. If a Default or a Event of Default has occurred and is
continuing, expend, or be committed to expend for Consolidated Capital Expenditures (including,
without limitation, for the acquisition of fixed assets) during any fiscal year in excess of the
amount of Consolidated Capital Expenditures estimated to be expended in such fiscal year by
Borrower in the projections delivered to the Lenders pursuant to Section 6.01(c).



     7.12 Financial Covenants.




     (a) Consolidated Leverage Ratio. Permit its Consolidated Leverage Ratio at the
end of any fiscal quarter to exceed 3.00:1.0.




The Consolidated Leverage Ratio will be calculated at the end of each fiscal quarter for
which this Agreement requires Borrower to deliver financial statements, using the results of
the twelve month period ending with that fiscal quarter, it being understood that to the
extent any Acquisition shall have occurred during such period, the Consolidated Leverage
Ratio shall be calculated as if such Acquisition occurred at the beginning of such period.




     (b) Consolidated Interest Coverage Ratio. Permit its Consolidated Interest
Coverage Ratio at the end of any fiscal quarter to be less than 3.00:1.0. The Consolidated
Interest Coverage Ratio will be calculated at the end of each fiscal quarter for which this
Agreement requires Borrower to deliver financial statements, using the results of the twelve
month period ending with that fiscal quarter.



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. Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal
of any Loan, or any L/C Obligation, or (ii) within three days after the same becomes due,
any interest on



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any Loan or on any L/C Obligation, or any commitment or other 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. 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, 6.11 or
Article VII; or




     (c) Other Defaults. Any Loan Party 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
any default or event of default occurs under any other Loan Document; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of Borrower or any
other Loan Party herein, 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) 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; or (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 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 Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by Borrower or
such Subsidiary as a result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
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 60 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



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     (g) Inability to Pay Debts; Attachment. (i) 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 30 days after its issue or levy; or




     (h) Judgments. There is entered against Borrower or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount 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 10 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. (i) 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 Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of the Threshold Amount, or (ii) Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder 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
Loan Document; or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or




     (k) Change of Control. There occurs any Change of Control with respect to
Borrower.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, 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 and any obligation of Agent to
make L/C Credit Extensions to be terminated, whereupon such commitments and obligation 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 Borrower;




     (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and




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



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provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of Agent to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of 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 and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III) payable
to 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 Lenders (including Attorney Costs
and amounts payable under Article III), ratably among them in proportion to the 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 L/C Borrowings, ratably among 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 and L/C Borrowings, ratably among Lenders in proportion to the respective amounts
described in this clause Fourth held by them;



     Fifth, to Agent, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit; and



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


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




ARTICLE IX




AGENT



     9.01 Appointment and Authorization of Agent. Each of the Lenders hereby irrevocably
appoints JPMorgan to act on its behalf as the Agent hereunder and under the other Loan Documents
and authorizes the Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental



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thereto. The provisions of this Article are solely for the benefit of the Agent and the
Lenders and Borrower shall not have any rights as a third party beneficiary of any of such
provisions.




     9.02 Rights as a Lender. The Person serving as the Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not the Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as the Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Agent is required to exercise as directed in writing
by 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), provided that the
Agent shall not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Agent to liability or that is contrary to any Loan Document or
applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Agent or any of its Affiliates in any capacity.



     The Agent shall not be liable for any action taken or not taken by it (i) with the consent or
at the request of the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary, or as the Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its
own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent by Borrower or a
Lender.



     The Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agent.



     9.04 Reliance by Agent.



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     The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper
Person. The Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a
Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent
shall have received notice to the contrary from such Lender prior to the making of such Loan or the
issuance of such Letter of Credit. The Agent may consult with legal counsel (who may be counsel
for Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.



     9.05 Delegation of Duties. The Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub agents appointed by the Agent. The Agent shall also be permitted from time to time to
designate one of its Affiliates to perform the duties to be performed by the Agent hereunder with
respect to Loans and Borrowings denominated in Alternative Currency. The Agent and any such sub
agent or Affiliate may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub agent and Affiliate and to the Related Parties of the Agent and any such sub agent
and Affiliate, and shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.



     9.06 Resignation of Agent. The Agent may at any time give notice of its resignation
to the Lenders and Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the
qualifications set forth above; provided that if the Agent shall notify Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents, and (2)
all payments, communications and determinations provided to be made by, to or through the Agent
shall instead be made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the
retiring Agent shall be discharged from all of its duties and obligations hereunder or under the
other Loan Documents (if not already discharged therefrom as provided above in this Section). The
fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between Borrower and such successor. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub
agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring Agent was acting as Agent.



     Any resignation by JPMorgan as Agent pursuant to this Section shall also constitute its
resignation as issuer of Letters of Credit and provider of Swing Line Loans. Upon the acceptance
of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become
vested with



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all of the rights, powers, privileges and duties of the retiring Agent, (b) the retiring Agent
as issuer of Letters of Credit and provider of Swing Line Loans shall be discharged from all of its
respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor Agent shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to the retiring
Agent to effectively assume the obligations of the retiring Agent with respect to such Letters of
Credit.




     9.07 Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the book runners, arrangers, syndication agents or co-documentation agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Agent or a Lender.



     9.09 Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have
made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the Agent and their
respective agents and counsel and all other amounts due the Lenders and the Agent under
Sections 2.03(i)and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender to make such payments
to the Agent and, in the event that the Agent shall consent to the making of such payments directly
to the Lenders to pay to the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any other amounts due the
Agent under Sections 2.09 and 10.04.



     Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or
accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender to authorize the Agent to vote in
respect of the claim of any Lender in any such proceeding.



     9.10 Guaranty Matters. The Lenders irrevocably authorize the Agent, at its option
and in its discretion, to release any Guarantor from its obligations under the Guaranty if such
Person ceases to be a



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Subsidiary as a result of a transaction permitted hereunder. Upon request by
the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to
release any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.




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 Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and Borrower or the
applicable Loan Party, as the case may be, and acknowledged by 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) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender; provided, however, in the sole discretion of the
Agent, only a waiver by Agent shall be required with respect to immaterial matters or items
specified in Section 4.01(a) (iii) or (iv) with respect to which
Borrower has given assurances satisfactory to Agent that such items shall be delivered
promptly following the Closing Date;




     (b) 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;




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




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, 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 (i) to
amend the definition of “Default Rate” or to waive any obligation of Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such amendment
would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;




     (e) 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;




     (f) amend Section 1.07 or the definition of “Alternative Currency” without the
written consent of each Lender;




     (g) 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; or



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     (h) release any Guarantor from the Guaranty without the written consent of each Lender,
except for (i) releases pursuant to Section 9.10, and (ii) the release of any
Guarantor neither the assets nor revenues of which represent a material portion of the
consolidated assets or revenues of Borrower;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Agent in addition to Lenders required above, affect the rights or duties of
Agent under this Agreement or any other Loan Document, (A) as Agent, (B) as provider of Swing Line
Loans, or (C) as Letter of Credit issuer or under any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) Section 10.06(h) may not be amended,
waived or otherwise modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other modification;
(including, without limitation, any reduction in any fee, charge, expense, cost or other amount
payable to Agent for its own account under this Agreement in any such capacity); and (iii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the
respective 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.



Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or
amended and restated) with the written consent of the Required Lenders, the Agent and the Borrower
to each relevant Loan Document (x) to add one or more credit facilities to this Agreement and to
permit extensions of credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the Loans and the accrued interest and fees in respect thereof and (y) to include
appropriately the Lenders holding such credit facilities in any determination of the Required
Lenders and Lenders. Furthermore, notwithstanding anything to the contrary herein the Agent may,
with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the
other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.




     10.02 Notices; Effectiveness; Electronic Communication.




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




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     (b) Electronic Communications. Notices and other communications to the
Lenders and the Agent hereunder may be delivered or furnished by electronic communication
(including email and Internet or intranet websites) pursuant to procedures approved by the
Agent, provided that the foregoing shall not apply to notices to any Lender pursuant
to Article II if such Lender has notified the Agent that it is incapable of
receiving notices under such Article by electronic communication. The Agent or 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 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 BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM 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 BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Agent or any of its Related Parties (collectively, the “Agent Parties”)
have any liability to 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
Borrower’s or the 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 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 Borrower and the 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 Borrower and
the Agent. In addition, each Lender agrees to notify the Agent from time to time to ensure
that the 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.




     (e) Reliance by Agent and Lenders. The Agent and the Lenders shall be entitled
to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line



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Loan Notices) purportedly given by or on behalf of 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. Borrower shall indemnify the 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 Borrower. All telephonic notices to and other telephonic communications
with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents
to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Agent to exercise,
and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder
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 are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



     10.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. Borrower shall pay (i) all reasonable out of pocket
expenses incurred by the Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the 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), the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder, and (ii)
all out of pocket expenses incurred by the Agent or any Lender (including the fees, charges
and disbursements of any counsel for the 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 or Letters of Credit issued hereunder, including all such out of pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.




     (b) Indemnification by Borrower. Borrower shall indemnify the Agent (and any
sub-agent thereof), each Lender and the Agent, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
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),
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
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, or, in the case of the Agent (and any sub-agent thereof) and
its Related Parties only, the administration of this Agreement and the other Loan Documents,
(ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Agent to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding



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relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by 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 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 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 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 Agent (or any sub-agent thereof) or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), the
Agent or such Related Party, as the case may be, such Lender’s Pro Rata Share (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 Agent (or any such sub-agent), or against any Related Party of any of the
foregoing acting for the 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, 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 Letter of
Credit 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 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 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
Borrower is made to the Agent or any Lender, or the Agent or any Lender exercises its right of set
off, and such payment or the proceeds of such set off 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 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



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force and effect as if such payment had not been made or such set off had not occurred, and
(b) each Lender severally agrees to pay to the Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the 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 applicable
Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment.
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 Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of the
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
subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section, or (iv) to
an SPC in accordance with the provisions of subsection (h) of this Section (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 subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent, the Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




     (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 (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line 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 Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000 unless each of the Agent and, so long as no
Event of Default has occurred and is continuing, 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




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	 	 	 	concurrent assignments from members of an Assignee Group to a single
assignee (or to an 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, except that this clause (ii) shall not apply to the Agent’s rights and
obligations in respect of Swing Line Loans;




     (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:


the consent of Borrower (such consent not to be unreasonably withheld or delayed; provided
that the Borrower shall be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Agent within five (5) Business Days after having received notice
thereof) 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;

the consent of the Agent, in its capacity as administrative agent (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment;

the consent of the Agent, in its capacity as issuer of Letters of Credit (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and
the consent of the Agent, in its capacity as provider of Swing Line Loans (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment.





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




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




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




     Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of
this Section, 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,
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



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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 subsection (d) of this
Section.




     (c) Register. The Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at the 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 and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and Borrower, the
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
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, Borrower or the Agent, sell participations to any Person (other than a natural
person or Borrower or any of 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 (including
such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (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) Borrower, the 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 subsection (e) of this Section, 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
subsection (b) of this Section. 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
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 Borrower is
notified of the participation sold to such Participant and such Participant agrees, for the
benefit of Borrower, to comply with Section 3.01(e) as though it were a Lender (it
being understood that the documentation required under Section 3.01(e) shall be
delivered to the participating Lender). Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it
enters the name and address of each Participant and the principal amounts (and stated
interest) of each Participant’s interest in the obligations under this Agreement (the
“Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participant’s interest in the



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obligations under this Agreement) except to the extent that such disclosure is
necessary to establish that such interest is in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary.




     (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(s), 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.




     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption 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.




     (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting Lender to
the Agent and Borrower (an “SPC”) the option to provide all or any part of any
Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment by
any SPC to fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof or, if it fails to do so,
to make such payment to the Agent as is required under Section 2.12(b)(ii). Each
party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise increase or change the
obligations of Borrower under this Agreement (including its obligations under Section
3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for
all purposes, including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The making of a
Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to
the same extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting against, such
SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under
the laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior consent of
Borrower and the Agent and with the payment of a processing fee in the amount of $3,500,
assign all or any portion of its right to receive payment with respect to any Committed Loan
to the Granting Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Committed Loans to any



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rating agency, commercial paper dealer or provider of any surety or Guarantee or credit
or liquidity enhancement to such SPC.




     (i) Resignation as Agent after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time JPMorgan assigns all of its Commitment and Loans
pursuant to subsection (b) above, JPMorgan may, upon 30 days’ notice to Borrower and the
Lenders, resign as Agent. In the event of any such resignation as Agent, Borrower shall be
entitled to appoint from among the Lenders a successor Agent hereunder; provided,
however, that no failure by Borrower to appoint any such successor shall affect the
resignation of JPMorgan as Agent. If JPMorgan resigns as Agent, it shall retain all the
rights, powers, privileges and duties of the Agent hereunder with respect to (A) all Letters
of Credit outstanding as of the effective date of its resignation as Agent and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)), and (B) Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c). Upon the appointment of a successor Agent, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of
the retiring Agent and (b) the successor Agent shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to JPMorgan to effectively assume the obligations of JPMorgan with
respect to such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the 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, 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 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 Borrower and its obligations, (g) with the consent of 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 Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than Borrower.



     For purposes of this Section, “Information” means all information received from
Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided that, in
the case of information received from Borrower or any 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.



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     Each of the Agent and the Lenders acknowledges that (a) the Information may include material
non-public information concerning 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
Federal and state securities Laws.



     10.08 Right of Set off. If an Event of Default shall have occurred and be
continuing, each Lender and each of their 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, the
Agent or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party
against any and all of the obligations of Borrower or any such other Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the Agent, irrespective
of whether or not such Lender or the Agent shall have made any demand under this Agreement or any
other Loan Document and although such obligations of Borrower or such Loan Party 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 their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of set off) that such Lender or their respective Affiliates may have. Each Lender
agrees to notify Borrower and the Agent promptly after any such set off and application,
provided that the failure to give such notice shall not affect the validity of such set off
and application.



     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 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 the Loans or, if it exceeds
such unpaid principal, refunded to Borrower. In determining whether the interest contracted for,
charged, or received by the 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
Agent and when the 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 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
Agent and each Lender, regardless of any investigation made by the Agent or any Lender or on their
behalf and notwithstanding that the Agent or any Lender may have had notice or knowledge of any
Default at the time of any Credit



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Extension, and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.




     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 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 Borrower may, at its sole expense and effort, upon notice to such Lender
and the 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 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) Borrower shall have paid to the 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 and L/C Advances, 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 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 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. BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF 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



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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 AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. 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, Borrower acknowledges and agrees that: (i) the credit
facilities provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm’s-length commercial transaction between Borrower and its
Affiliates, on the one hand, and the Agent, the Lenders and the Arranger, on the other hand, and
Borrower is capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents (including any
amendment, waiver or other modification hereof or thereof);



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(ii) in connection with the process leading to such transaction, each of the Agent, the
Lenders and the Arranger is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for Borrower or any of its Affiliates, stockholders, creditors or
employees or any other Person; (iii) none of the Agent, the Lenders or the Arranger has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of Borrower with respect to
any of the transactions contemplated hereby or the process leading thereto, including with respect
to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective
of whether the Agent, any Lender or the Arranger has advised or is currently advising Borrower or
its Affiliates on other matters) and none of the Agent, the Lenders or the Arranger has any
obligation to Borrower or its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; (iv) the
Agent, the Lenders and the Arranger 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 Agent, the Lenders or the Arranger has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Agent, the
Lenders and the Arranger have not provided and will not provide any legal, accounting, regulatory
or tax advice with respect to any of the transactions contemplated hereby (including any amendment,
waiver or other modification hereof or of any other Loan Document) and the Borrower has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.
The Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it
may have against the Agent, the Lenders and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.




     10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the 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 the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with the Act.



     10.18 Time of the Essence. Time is of the essence of the Loan Documents.



     10.19 Judgment Currency. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the first currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligation of the Borrower in
respect of any such sum due from it to the Agent or the Lenders hereunder or under the other Loan
Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other
than that in which such sum is denominated in accordance with the applicable provisions of this
Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business
Day following receipt by the Agent of any sum adjudged to be so due in the Judgment Currency, the
Agent may in accordance with normal banking procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Agent or the Person to
whom such obligation was owing against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Agent in such currency, the Agent agrees to
return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto
under applicable law).



[Signature Pages Follow]



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



	 	 	 	 	 
	 	LITTELFUSE, INC., as the Borrower

 	 
	 	By:  	/s/ Philip G. Franklin	 
	 	 	Name:  	Philip G. Franklin	 
	 	 	Title:  	Vice
President,
 Operation Support, Chief Financial Officer	 
	 
	 	JPMORGAN CHASE BANK, N.A., individually as a Lender

and as Agent


	 
	 	By:  	/s/
Suzanne Ergastolo
	 
	 	 	Name:  	Suzanne Ergastolo	 
	 	 	Title:  	Vice
President	 
	 
	 	[OTHER AGENTS AND LENDERS]

 	 



Signature Page to Credit Agreement

Littelfuse, Inc.



 









 





SCHEDULE 1.01




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its functions);
or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as practicable thereafter) Agent shall
calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender,
in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by
Agent as a weighted average of Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum. Agent will, at the request of Borrower or any Lender, deliver to
Borrower or such Lender as the case may be, a statement setting forth the calculation of any
Mandatory Cost.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to Agent. This percentage will be
certified by such Lender in its notice to Agent as the cost (expressed as a percentage of such
Lender’s participation in all Loans made from such Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of Loans made from that
Lending Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 	 	 

	 

	 	AB+C(B-D)+E x 0.01
	 	per cent per annum
	 

	 	 	 	 
	 

	 	100 — (A+C)	 	 







	 	(b)	 	in relation to any Loan in any currency other than Sterling:





	 	 	 	 	 	 	 

	 

	 	E x 0.01
	 	per cent per annum
	 

	 	 	 	 
	 

	 	 	300	 	 	 





Where:





	 	“A” 	 	 is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	“B”  	 	is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to the first
sentence of Section 2.08(b) and, in the case of interest (other than on overdue
amounts) charged at the Default Rate, without counting any increase in interest rate
effected by the charging of the Default Rate) payable for the relevant Interest Period
of such Loan.




 









 






	 	“C”  	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	“D” 	 	 is the percentage rate per annum payable by the Bank of England to Agent on
interest bearing Special Deposits.
	 
	 	“E” 	 	 is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by Agent as being the average of the most recent rates of
charge supplied by Lenders to Agent pursuant to paragraph 7 below and expressed
in pounds per £1,000,000.






	1.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Regulations” means the Financial Services Authority Fees Manual
or such other law or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Regulations
under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated
fee required pursuant to the Fees Regulations but taking into account any applicable
discount rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations.






	2.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.
	 
	3.	 	If requested by Agent or Borrower, each Lender with a Lending Office in the United Kingdom or
a Participating Member State shall, as soon as practicable after publication by the Financial
Services Authority, supply to Agent and Borrower, the rate of charge payable by such Lender to
the Financial Services Authority pursuant to the Fees Regulations in respect of the relevant
financial year of the Financial Services Authority (calculated for this purpose by such Lender
as being the average of the Fee Tariffs applicable to such Lender for that financial year) and
expressed in pounds per £1,000,000 of the Tariff Base of such Lender.
	 
	4.	 	Each Lender shall supply any information required by Agent for the purpose of calculating its
Additional Cost Rate. In particular, but without limitation, each Lender shall supply the
following information in writing on or prior to the date on which it becomes a Lender:






	 	(a)	 	its jurisdiction of incorporation and the jurisdiction of the Lending Office
out of which it is making available its participation in the relevant Loan; and
	 
	 	(b)	 	any other information that Agent may reasonably require for such purpose.




-2-









 










Each Lender shall promptly notify Agent in writing of any change to the information provided by it
pursuant to this paragraph.





	5.	 	The percentages or rates of charge of each Lender for the purpose of A, C and E above shall
be determined by Agent based upon the information supplied to it pursuant to paragraphs
7 and 8 above and on the assumption that, unless a Lender notifies Agent to the
contrary, each Lender’s obligations in relation to cash ratio deposits, Special Deposits and
the Fees Regulations are the same as those of a typical bank from its jurisdiction of
incorporation with a Lending Office in the same jurisdiction as such Lender’s Lending Office.
	 
	6.	 	Agent shall have no liability to any Person if such determination results in an Additional
Cost Rate which over- or under-compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3, 7 and 8
above is true and correct in all respects.
	 
	7.	 	Agent shall distribute the additional amounts received as a result of the Mandatory Cost to
Lenders on the basis of the Additional Cost Rate for each Lender based on the information
provided by each Lender pursuant to paragraphs 3, 7 and 8 above.
	 
	8.	 	Any determination by Agent pursuant to this Schedule in relation to a formula, the Mandatory
Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.
	 
	9.	 	Agent may from time to time, after consultation with Borrower and Lenders, determine and
notify to all parties any amendments which are required to be made to this Schedule in order
to comply with any change in law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and binding on all
parties hereto.




-3-









 











SCHEDULE 2.01




COMMITMENTS

AND PRO RATA SHARES




	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Pro Rata Share
	 
	JPMorgan Chase Bank, N.A.
	 	$	35,000,000	 	 	23.33%
	Bank of America, N.A.
	 	$	30,000,000	 	 	20.00%
	Wells Fargo Bank, N.A.
	 	$	30,000,000	 	 	20.00%
	PNC Bank, National Association
	 	$	30,000,000	 	 	20.00%
	The Northern Trust Company
	 	$	25,000,000	 	 	16.67%
	 
	 	 	 	 	 	 
	Total
	 	$	150,000,000	 	 	100.00%






 









 






SCHEDULE 2.03




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	Letter of Credit	 	 	 	 	 	 	 	 
	Number	 	Issuing Bank	 	Beneficiary	 	Amount	 	Expiry Date
	7412378

	 	Bank of America, N.A.
	 	Pacific Employers
Insurance Company
	 	$	15,000.00	 	 	12/31/2011
	7412377

	 	Bank of America, N.A.
	 	Federal Insurance
Company
	 	$	360,000.00	 	 	12/31/2011
	3092354

	 	Bank of America, N.A.
	 	National Union Fire
Insurance Company
of Pittsburgh, PA
	 	$	325,000.00	 	 	12/31/2011






 









 






SCHEDULE 5.06




LITIGATION



None.








-1-









 








SCHEDULE 5.09




ENVIRONMENTAL MATTERS



None.









-1-









 








SCHEDULE 5.13




SUBSIDIARIES

AND OTHER EQUITY INVESTMENTS




     Part (a). Subsidiaries.



	 	 	 	 	 	 	 	 	 
	 	 	JURISDICTION OF	 	 	 	 	 	US Taxpayer
	SUBSIDIARIES	 	INCORPORATION	 	% OWNERSHIP	 	ID #
	Cole Hersee Company

	 	Massachusetts
	 	 	100	%	 	 
	Cole Hersee S de RL de CV

	 	Mexico
	 	 	100	%	 	 
	Littelfuse S.A. de C.V.

	 	Mexico
	 	 	100	%	 	 
	LF Consorcio S. De R.L. de C.V.

	 	Mexico
	 	 	100	%	 	 
	Startco Engineering Ltd.

	 	Canada
	 	 	100	%	 	 
	Littelfuse do Amazonia, Ltda.

	 	Brazil
	 	 	100	%	 	 
	Littelfuse Ireland Development Co., Ltd.

	 	Ireland
	 	 	100	%	 	 
	Littelfuse Ireland Limited

	 	Ireland
	 	 	100	%	 	 
	Littelfuse Ireland Holding Ltd.

	 	Ireland
	 	 	100	%	 	 
	Littelfuse U.K. Ltd.

	 	United Kingdom
	 	 	100	%	 	 
	Littelfuse, B.V.

	 	Netherlands
	 	 	100	%	 	 
	REMPAT Holding B.V.

	 	Netherlands
	 	 	100	%	 	 
	REMPAT Financial B.V.

	 	Netherlands
	 	 	100	%	 	 
	Littelfuse Europe Holding, B.V.

	 	Netherlands
	 	 	100	%	 	 
	Littelfuse Holding GMBH

	 	Germany
	 	 	100	%	 	 
	Littelfuse GMBH

	 	Germany
	 	 	100	%	 	 
	H.I. Verwaltungs, GmbH

	 	Germany
	 	 	100	%	 	 
	Wickmann-Werke GmbH

	 	Germany
	 	 	100	%	 	 
	LF Europe GmbH

	 	Germany
	 	 	100	%	 	 
	Littelfuse Far East Pte Ltd.

	 	Singapore
	 	 	100	%	 	 
	Littelfuse HK Limited

	 	Hong Kong
	 	 	100	%	 	 
	Suzhou Littelfuse OVS Ltd.

	 	Peoples Republic of
China
	 	 	100	%	 	 
	Dongguan Littelfuse Electronics Co., Ltd.

	 	Peoples Republic of
China
	 	 	100	%	 	 
	Concord Semiconductor (Wuxi) Company

	 	Peoples Republic of
China
	 	 	100	%	 	 
	Littelfuse KK

	 	Japan
	 	 	100	%	 	 
	Littelfuse Triad Inc.

	 	South Korea
	 	 	99	%	 	 
	Littelfuse Phils Inc.

	 	Philippines
	 	 	100	%	 	 
	Littelfuse Concord Semiconductor, Inc.

	 	Taiwan
	 	 	100	%	 	 
	Concord Holding (BVI) Co. Ltd.

	 	British Virgin Islands
	 	 	100	%	 	 






     Part (b). Other Equity Investments.



	 	 	 	 	 	 	 	 	 
	 	 	JURISDICTION OF	 	 	 	 
	ENTITY	 	INCORPORATION	 	 	% OWNERSHIP	 
	Polytronics Technology Corporation
	 	Taiwan	 	 	8.22	%






 









 






SCHEDULE 5.18




INTELLECTUAL PROPERTY MATTERS



None.








-1-









 








SCHEDULE 7.01




EXISTING LIENS



None.








-1-









 








SCHEDULE 7.03




EXISTING INDEBTEDNESS



Startco Engineering Ltd.




	 	 	 

	Due to:

	 	The Toronto-Dominion Bank,

through its 170 2nd
Avenue South Branch, in

Saskatoon, Saskatchewan
	 
	Original Principal Amount:

	 	CDN$10,000,000
	 
	Outstanding Principal Amount at June 13, 2011:

	 	None
	 

	 	Variable depending on type of loan
	 
	Payment Terms:

	 	Open revolver line of credit, no
revolver principal due until line
matures on July 21, 2011
	 
	Final Payment Date:

	 	July 21, 2011






-1-









 






SCHEDULE 10.02




ADDRESSES FOR NOTICES




LITTELFUSE, INC.

800 E. Northwest Highway

Des Plaines, Illinois 60016





	Attn: 	 	 Assistant Treasurer

Telephone: 847-391-0362

Facsimile: 847-512-0340

Electronic Mail: lbartuch@littelfuse.com





Website Address: www.littelfuse.com

U.S. Taxpayer Identification Number: 36-3795742




JPMORGAN CHASE BANK, N.A.



if to the Agent in the case of Committed Borrowings denominated in Dollars:




JPMorgan Chase Bank, N.A.

10 South Dearborn Street

Chicago, Illinois 60603

Attention: Nan Wilson

Telephone: 312-385-7084

Facsimile: 888-303-9732



If to the Agent in the case of Committed Borrowings denominated in Alternative Currencies:




J.P. Morgan Europe Limited

125 London Wall

London EC2Y 5AJ

Attention: Belinda Lucas

Telephone: 44 207 777 3092

Facsimile: 44 207 777 2360



and in each case with a copy to:




JPMorgan Chase Bank, N.A.

10 South Dearborn Street

Chicago, Illinois 60603

Attention: Suzanne Ergastolo

Facsimile: (312) 794-7682




If to the Agent in the case of requests in respect of Letters of Credit:

JPMorgan Chase Bank, N.A.

10 South Dearborn Street

Chicago, Illinois 60603

Attention: Nan Wilson

Telephone: 312-385-7084

Facsimile: 888-303-9732




-1-









 





If to the Agent in the case of Swing Line Borrowings:


JPMorgan Chase Bank, N.A.

10 South Dearborn Street

Chicago, Illinois 60603

Attention: Nan Wilson

Telephone: 312-385-7084

Facsimile: 888-303-9732




 









 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date: ___________, _____





	To: 	 	JPMorgan Chase Bank, N.A., as Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 13, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Credit Agreement;” the terms defined therein being used herein as therein defined), among
Littelfuse, Inc. (“Borrower”), Lenders from time to time party thereto, and JPMorgan Chase
Bank, N.A., as Agent.



     The undersigned hereby requests (select one):



	 	 	 	 	 	 	 	 	 

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







	 	1.	 	On ______________________ (a Business Day).
	 
	 	2.	 	In the amount of $___________________________.
	 
	 	3.	 	Comprised of ____________________.
	 
	 	 	 	[Type of Committed Loan requested]
	 
	 	4.	 	In the following currency: ____________________.
	 
	 	5.	 	For Eurocurrency Rate Loans: with an Interest Period of ___ months.





     [The Committed Borrowing requested herein complies with the proviso to the first sentence of
Section 2.01 of the Credit Agreement.]



	 	 	 	 	 
	 	LITTELFUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Committed Loan Notice



A-1









 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____





	To:  	 	JPMorgan Chase Bank, N.A., as Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 13, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Credit Agreement;” the terms defined therein being used herein as therein defined), among
Littelfuse, Inc., a Delaware corporation (“Borrower”), Lenders from time to time party
thereto, and JPMorgan Chase Bank, N.A., as Agent.



     The undersigned hereby requests a Swing Line Loan:




	 	1.	 	On ______________________ (a Business Day).
	 
	 	2.	 	In the amount of $___________________________.





     The Swing Line Borrowing requested herein complies with the requirements of the proviso to the
first sentence of Section 2.04(a) of the Credit Agreement.



	 	 	 	 	 
	 	LITTELFUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Swing Line Loan Notice




B-1











 





EXHIBIT C




FORM OF NOTE




[__________], 2011




     FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to the order
of [Lender] or registered assigns (“Lender”), in accordance with the provisions of the
Agreement (as hereinafter defined) the principal amount of each Loan from time to time made by
Lender to Borrower under that certain Credit Agreement, dated as of June 13, 2011 (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
Borrower, Lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as Agent.



     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 Agent for the
account of Lender in the currency in which such Committed Loan was denominated and in Same Day
Funds at Agent’s Office for such currency. 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. This Note is also entitled to the benefits of the Guaranty, if any. 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 Lender shall be evidenced by one or more
loan accounts or records maintained by Lender in the ordinary course of business. Lender may also
attach schedules to this Note and endorse thereon the date, amount, currency and maturity of its
Loans and payments with respect thereto.



     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.



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



	 	 	 	 	 
	 	LITTELFUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Note






C-1









 








LOANS AND PAYMENTS WITH RESPECT THERETO




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





Form of Note





C-2









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: ______________,



To: JPMorgan Chase Bank, N.A., as Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 13, 2011 (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
Littelfuse, Inc. (“Borrower”), Lenders from time to time party thereto, and JPMorgan Chase
Bank, N.A., as Agent.



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



[Use following for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of Borrower ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section.



[Use following for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of Borrower ended as of the above
date. Such financial statements fairly present the financial condition, results of operations and
cash flows of 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 Borrower during the accounting period covered by the attached
financial statements.



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



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default or Event of Default and its nature and status:]



D-1









 





     4. The representations and warranties of the Borrower contained in Article V of the
Agreement, or which 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 subsections (a), (b) and (c) of
Section 5.05 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 set forth on Schedule 2 attached hereto are
true and accurate on and as of the date of this Certificate.



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



	 	 	 	 	 
	 	LITTELFUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



D-2









 






	 	 	 	 	 



For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 2

to the Compliance Certificate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	I.	 	Section 7.12(a) —Consolidated Leverage Ratio.	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	A.	 	 	Consolidated Funded Indebtedness at Statement Date:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	B.	 	 	 	Consolidated EBITDA for four consecutive fiscal quarters ending on above date
(“Subject Period”):	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	1.	 	Consolidated Net Income for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	2.	 	Consolidated Interest Charges for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	3.	 	Provision for income taxes for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	4.	 	Depreciation expenses for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	5.	 	Amortization expenses for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	6.	 	Plus Non-cash reductions of Consolidated Net Income for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	7.	 	Minus Non-cash additions to Consolidated Net Income for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	8.	 	Consolidated EBITDA (Lines I.B.1 + 2 + 3 + 4 + 5 + 6 - 7):	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	C.	 	 	Ratio (Line I.A.  ̧ Line I.B.8.):	 	to 1.0
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





Maximum Required Consolidated      3.00:1.0

Leverage Ratio:




	 	 	 	 	 	 	 	 	 	 	 	 	 

	II.	 	Section 7.12(b) — Consolidated Interest Coverage Ratio.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	A.	 	 	Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”)(Line I.B.8):	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	B.	 	 	Consolidated Interest Charges for Subject Period:	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	C.	 	 	Ratio (Line II.A  ̧ Line II.B)	 	to 1.0
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Minimum Required:  3.00 to 1.0	 	 	 	 






D-3









 






EXHIBIT E




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”).3 [It is
understood and agreed that the rights and obligations of [the Assignors][the Assignees] 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 respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) 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 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]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 







 




			
	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.
	 
	5	 	Include all applicable subfacilities.





Form of Assignment and Assumption






E-1









 








	 	 	 	 	 	 	 	 	 

	2.

	 	Assignee[s]:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	 	 	 	 	 	 	 	 
	3.

	 	Borrower(s):	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement
	 
	 	 	 	 	 	 	 	 
	5.	 	Credit Agreement: Credit Agreement, dated as of June 13, 2011, among Littelfuse, Inc., the Lenders from time to time party thereto, and JPMorgan Chase
Bank, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender
	 
	 	 	 	 	 	 	 	 
	6.

	 	Assigned Interest[s]:	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 
	 	 	 	 	 	 	Facility	 	 	Commitment	 	 	Commitment	 	 	Assigned of	 
	Assignor[s]6	 	Assignee[s]7	 	 	Assigned8	 	 	for all Lenders9	 	 	Assigned	 	 	Commitment10	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





[7. Trade Date: __________________]11



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



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




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to and] Accepted:






 




			
	6	 	List each Assignor, as appropriate.
	 
	7	 	List each Assignee, as appropriate.
	 
	8	 	Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g. “Revolving Credit Commitment”, “Term Loan Commitment”,
etc.).
	 
	9	 	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.
	 
	10	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment of all Lenders thereunder.
	 
	11	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





Form of Assignment and Assumption






E-2









 







	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as Agent

 	 
	By:  	 	 
	 	Title: 	 
	 	 	 
	[Consented to:]12

[BORROWER]

 	 
	By:  	 	 
	 	Title: 	 
	 	 	 	 
	 





 




			
	12	 	To be added only if the consent of Borrower
and/or other parties (e.g. the provider of Swing Line Loans, the issuer of
Letters of Credit) is required by the terms of the Credit Agreement.





Form of Assignment and Assumption





E-3









 








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 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



Annex 1 to Assignment and Assumption Agreement





E-4









 







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.



Annex 1 to Assignment and Assumption Agreement






E-5









 








EXHIBIT F




FORM OF GUARANTY




     GUARANTY dated as of [__________], 2011 made by the Persons listed on the signature pages
hereof under the caption “Original Guarantors” and the Additional Guarantors (as defined in Section
8(b)) (such Persons so listed and the Additional Guarantors being, collectively, the
“Guarantors” and, individually, each a “Guarantor”) in favor of the Lenders (as
defined in the Credit Agreement referred to below).



     PRELIMINARY STATEMENT. Littelfuse, Inc., a Delaware corporation (the “Borrower”), is party to
a Credit Agreement dated as of June 13, 2011 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; the capitalized terms defined therein
and not otherwise defined herein being used herein as therein defined) with certain Lenders party
thereto, and JPMorgan Chase Bank, N.A., as Agent for such Lenders. Each Guarantor will derive
substantial direct and indirect benefits from the transactions contemplated by the Credit
Agreement. It is a condition precedent to the making of Loans or issuance of Letters of Credit by
the Lenders or the Agent under the Credit Agreement from time to time that each Guarantor shall
have executed and delivered this Guaranty.



     NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders and the
Agent to make Loans and/or issue Letters of Credit under the Credit Agreement from time to time,
each Guarantor, jointly and severally with each other Guarantor, hereby agrees as follows:


Section 1. Guaranty, Limitation of Liability




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




          (b) Each Guarantor, and by its acceptance of this Guaranty, Agent and each other Lender,
hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations
of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing
intention, Agent, the other Lenders and the Guarantors hereby irrevocably agree that the
Obligations of each




Form of Guaranty





F-1









 







Guarantor under this Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type
referred to in Section 8.01(f) of the Credit Agreement or Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.




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



Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Lender with respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of
any other Loan Party under or in respect of the Loan Documents, and a separate action or actions
may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against Borrower or any other Loan Party or whether Borrower or any
other Loan Party is joined in any such action or actions. The liability of each Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives (to the full extent permitted by law), any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:




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




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




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




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




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




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







F-2









 








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


Section 3. Waivers and Acknowledgments.




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




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




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




          (d) Each Guarantor acknowledges that Agent may, without notice to or demand upon such
Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose
under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the
recovery by Agent and the other Lenders against such Guarantor of any deficiency after such
nonjudicial sale and any defense or benefits that may be afforded by applicable law.




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




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



Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not
to exercise any rights that it may now have or hereafter acquire against Borrower, any other Loan
Party or any other insider guarantor that arise from the existence, payment, performance or
enforcement of such Guarantor’s Obligations under or in respect of this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of any Lender
against Borrower, any other Loan Party or any other insider guarantor, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law, including, without
limitation, the right to take or






F-3









 







receive from Borrower, any other Loan Party or any other insider guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, all Letters of Credit
shall have expired or been terminated and the Commitments shall have expired or been terminated.
If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at
any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Guaranty, (b) the Maturity Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be received and held in trust
for the benefit of the Lenders, shall be segregated from other property and funds of such Guarantor
and shall forthwith be paid or delivered to Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and
all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the
terms of the Loan Documents. If (i) any Guarantor shall make payment to any Lender of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the Maturity Date shall
have occurred and (iv) all Letters of Credit shall have expired or been terminated, the Lenders
will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting
from such payment made by such Guarantor pursuant to this Guaranty.



Section 5. Payments Free and Clear of Taxes, Etc.




          (a) Any and all payments made by any Guarantor under or in respect of this Guaranty or any
other Loan Document shall be made, in accordance with Section 2.12 of the Credit Agreement, free
and clear of and without deduction for any and all present or future Indemnified Taxes or Other
Taxes. If any Guarantor shall be required by law to deduct any Indemnified Taxes or Other Taxes
from or in respect of any sum payable under or in respect of this Guaranty or any other Loan
Document to any Lender, (i) the sum payable by such Guarantor shall be increased as may be
necessary so that after such Guarantor and Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 5), such Lender receives an
amount equal to the sum it would have received had no such deductions been made, (ii) such
Guarantor shall make all such deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.




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




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




          (d) Within 30 days after the date of any payment of Taxes by or on behalf of any Guarantor,
such Guarantor shall furnish to Agent, at its address referred to in Section 9, the original or a
certified copy of a receipt evidencing such payment. In the case of any payment hereunder by or on
behalf of any Guarantor through an account or branch outside the United States or by or on behalf
of






F-4









 







such Guarantor by a payor that is not a United States person, if such Guarantor determines
that no Taxes are payable in respect thereof, such Guarantor shall furnish or shall cause such
payor to furnish, to Agent, at such address, an opinion of counsel acceptable to Agent stating that
such payment is exempt from Taxes. For purposes of subsection (d) of this Section 5, the terms
“United States” and “United States person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.



Section 6. Representations and Warranties. Each Guarantor hereby makes each representation
and warranty made in the Loan Documents by Borrower with respect to such Guarantor and each
Guarantor hereby further represents and warrants as follows:




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




          (b) Such Guarantor has, independently and without reliance upon any Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Guaranty and each other Loan Document to which it is or is to be a party, and
such Guarantor has established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing basis will be completely
familiar with, the business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.



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



Section 8. Amendments, Guaranty Supplements, Etc.




          (a) No amendment or waiver of any provision of this Guaranty and no consent to any departure
by any Guarantor therefrom shall in any event be effective unless the same shall be in writing and
signed by Agent and the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all of the Lenders (other than
any Lender that is, at such time, a Defaulting Lender), (a) reduce or limit the obligations of any
Guarantor hereunder, release any Guarantor hereunder or otherwise limit any Guarantor’s liability
with respect to the Obligations owing to the Lenders under or in respect of the Loan Documents, (b)
postpone any date fixed for payment hereunder or (c) change the number of Lenders or the percentage
of the Aggregate Commitments or of the unpaid principal amount of the Loans and L/C Obligations
which is required for the Lenders or any of them to take any action hereunder.




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






F-5









 







this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty
Supplement.



Section 9. Notices, Etc. All notices and other communications provided for hereunder shall
be in writing and mailed, telecopied or delivered to it, if to any Guarantor, addressed to it in
care of Borrower at Borrower’s address specified in Section 10.02 of the Credit Agreement, if to
Agent, at its address specified in Section 10.02 of the Credit Agreement, if to any other Lender,
to the address specified in its Administrative Questionnaire or, as to any party, at such other
address as shall be designated by such party in a written notice to each other party. Notices sent
by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by telecopier shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the recipient). Delivery
by telecopier of an executed counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty or of any Guaranty Supplement to be executed and delivered hereunder
shall be effective as delivery of an original executed counterpart thereof.



Section 10. No Waiver, Remedies. No failure on the part of any Lender to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.



Section 11. Right of Set-off. Upon (a) the occurrence and during the continuance of any
Event of Default and (b) the making of the request or the granting of the consent specified by
Section 8.02 of the Credit Agreement to authorize Agent to declare the Obligations due and payable
pursuant to the provisions of said Section 8.02, Agent and each Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by Agent, such Lender or such
Affiliate to or for the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under the Loan Documents, irrespective of
whether Agent or such Lender shall have made any demand under this Guaranty or any other Loan
Document and although such Obligations may be unmatured. Agent and each Lender agrees promptly to
notify such Guarantor after any such set-off and application; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and application. The rights of
Agent and each Lender and their respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off) that Agent, such
Lender and their respective Affiliates may have.



Section 12. Indemnification.




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







F-6









 








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




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




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




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




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




          (c) Turn-Over. After the occurrence and during the continuance of any Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law relating to
any other Loan Party), each Guarantor shall, if Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the Lenders and deliver such
payments to Agent on account of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other provisions of this
Guaranty.




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






F-7









 







amounts received on such obligations to Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).



Section 14. Continuing Guaranty, Assignments under the Credit Agreement. This Guaranty is
a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty, (ii) the Maturity Date and (iii) the latest date of expiration or termination of all
Letters of Credit, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to
the benefit of and be enforceable by the Lenders and their successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding sentence, any Lender may
assign or otherwise transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to
it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender herein or otherwise,
in each case as and to the extent provided in Section 10.07 of the Credit Agreement. No Guarantor
shall have the right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.



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



Section 16. Severability. If any provision of this Guaranty is held to be illegal, invalid
or unenforceable, the legality, validity and enforceability of the remaining provisions of Guaranty
shall not be affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



Section 17. Governing Law, Jurisdiction, Waiver of Jury Trial, Etc.




          (a) This Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.




          (b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any judgment, and each
Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty or any other Loan
Document shall affect any right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any other Loan Document in the courts of any jurisdiction.




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






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Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any such court.




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



Section 18. Foreign Currency. If any claim arising under or related to this Guaranty is
reduced to judgment denominated in a currency (the “Judgment Currency”) other than the
currencies in which the Guaranteed Obligations are denominated (collectively the “Obligations
Currency”), the judgment shall be for the equivalent in the Judgment Currency of the amount of
the claim denominated in the Obligations Currency included in the judgment, determined as of the
date of judgment. The equivalent of any Obligations Currency amount in any Judgment Currency shall
be calculated at the Spot Rate for the purchase of the Obligations Currency with the Judgment
Currency quoted by the Agent in the place of the Agent’s choice at or about 8:00 a.m. on the date
for determination specified above. The Guarantor shall indemnify the Agent and each Lender and
hold the Agent and each Lender harmless from and against all loss or damage resulting from any
change in exchange rates between the date any claim is reduced to judgment and the date of payment
thereof by the Guarantor. If the Agent so notifies the Guarantor in writing, at the Agents sole
and absolute discretion, payments under this Guaranty shall be the U.S. Dollar equivalent of the
Guaranteed Obligations or any portion thereof, determined as of the date payment is made.









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



	 	 	 	 	 
	 	COLE HERSEE COMPANY,

a Massachusetts corporation

 	 
	 	By:  	 	 
	 	 	Philip G. Franklin 	 
	 	 	Vice President 	 
	 




 











 





FORM OF GUARANTY SUPPLEMENT




__________ __, ____




JPMorgan Chase Bank, N.A., as Agent

10 South Dearborn Street

Chicago, Illinois 60603

Attention: Suzanne Ergastolo




Credit Agreement dated as of June 13, 2011 among

Littelfuse, Inc., a Delaware corporation

(the “Borrower”), the Lenders




party to the Credit Agreement, JPMorgan Chase Bank, N.A., as Agent



Ladies and Gentlemen:




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


Section 1. Guaranty; Limitation of Liability.




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



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



F-Supp-1





 









 








          (c) The undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Lender under this Guaranty Supplement, the Guaranty or
any other guaranty, the undersigned will contribute, to the maximum extent permitted by applicable
law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Lenders under or in respect of the Loan Documents.


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



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



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



Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.




          (a) This Guaranty Supplement shall be governed by, and construed in accordance with, the laws
of the State of New York.



          (b) The undersigned hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or any federal court of the
United States of America sitting in New York City, and any appellate court from any y thereof, in
any action or proceeding arising out of or relating to this Guaranty Supplement, the Guaranty or
any of the other Loan Documents to which it is or is to be a party, or for recognition or
enforcement of any judgment, and the undersigned hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined in any such New
York State court or, to the extent permitted by law, in such federal court. The undersigned agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Guaranty Supplement or the Guaranty or any other Loan Document shall affect any right that any
party may otherwise have to bring any action or proceeding relating to this Guaranty Supplement,
the Guaranty or any of the other Loan Documents to which it is or is to be a party in the courts of
any other jurisdiction.



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



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



F-Supp-2




 









 








	 	 	 	 	 
	 	Very truly yours,



[NAME OF ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 
	 	Title: 	 		 



F-Supp-3





 









 








EXHIBIT G




FORM OF OPINION




[Attached]



Form of Opinion




G-1