TERM LOAN AGREEMENT dated as of February 11, 2005 among BRIGGS & STRATTON CORPORATION, THE FINANCIAL INSTITUTIONS PARTY HERETO, LASALLE BANK NATIONAL ASSOCIATION, as Syndication Agent, and BANK OF AMERICA, N.A., as Administrative Agent BANC OF AMERICA...

Exhibit 10.1

TERM LOAN AGREEMENT

dated as of February 11, 2005

among

XXXXXX & XXXXXXXX CORPORATION,

THE FINANCIAL INSTITUTIONS PARTY HERETO,

LASALLE BANK NATIONAL ASSOCIATION,

as Syndication Agent,

and

BANK OF AMERICA, N.A.,

as Administrative Agent

BANC OF AMERICA SECURITIES LLC

Lead Arranger and Book Manager

TABLE OF CONTENTS


		Page

SECTION 1	DEFINITIONS	1

1.1	Certain Defined Terms	1

1.2	Other Interpretive Provisions	14

1.3	Accounting Principles	14

SECTION 2	THE LOANS	15

2.1	Term Loans	15

2.2	Prepayments	16

2.3	Repayment	16

2.4	Interest	16

2.5	Fees	17

2.6	Payments by the Company	17

2.7	Sharing of Payments, Etc.	18

SECTION 3	EVIDENCE OF LOANS	18

3.1	Loan Accounts	18

3.2	Notes	19

SECTION 4	TAXES, YIELD PROTECTION AND ILLEGALITY	19

4.1	Taxes	19

4.2	Illegality	20

4.3	Increased Costs and Reduction of Return	20

4.4	Funding Losses	21

4.5	Inability to Determine Rates	21

4.6	Certificates of Banks	21

4.7	Substitution of Banks	21

4.8	Survival	22

SECTION 5	CONDITIONS PRECEDENT	22

5.1	Conditions Precedent	22

SECTION 6	REPRESENTATIONS AND WARRANTIES	23

6.1	Existence and Power	23

6.2	Authorization; No Contravention	23

6.3	Governmental Authorization	24

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6.4	Binding Effect	24

6.5	Litigation	24

6.6	ERISA Compliance	24

6.7	Use of Proceeds; Margin Regulations	25

6.8	Title to Properties	25

6.9	Taxes	25

6.10	Financial Condition	25

6.11	Environmental Matters	26

6.12	Regulated Entities	26

6.13	Copyrights, Patents, Trademarks and Licenses, etc.	26

6.14	Subsidiaries	26

6.15	Insurance	26

6.16	Full Disclosure	26

SECTION 7	AFFIRMATIVE COVENANTS	27

7.1	Financial Statements	27

7.2	Certificates; Other Information	27

7.3	Notices	28

7.4	Preservation of Existence, Etc.	29

7.5	Maintenance of Property	29

7.6	Insurance	30

7.7	Payment of Taxes	30

7.8	Compliance with Laws	30

7.9	Compliance with ERISA	30

7.10	Inspection of Property and Books and Records	30

7.11	Environmental Laws	31

7.12	Use of Proceeds	31

7.13	Guaranty	31

SECTION 8	NEGATIVE AND FINANCIAL COVENANTS	31

8.1	Limitation on Liens	31

8.2	Disposition of Assets	33

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8.3	Consolidations and Mergers	34

8.4	Hostile Acquisitions; Foreign Investments	34

8.5	Limitation on Specified Subsidiary Indebtedness	35

8.6	Transactions with Affiliates	35

8.7	Contingent Obligations	35

8.8	ERISA	36

8.9	Limitation on Dividends and Stock Redemptions	36

8.10	Off Balance Sheet Transactions	36

8.11	Financial Covenants	36

8.12	Guarantors	37

8.13	Hedging Agreements	37

SECTION 9	EVENTS OF DEFAULT	37

9.1	Events of Default	37

9.2	Remedies	39

9.3	Rights Not Exclusive	39

SECTION 10	THE ADMINISTRATIVE AGENT	39

10.1	Appointment and Authorization of Administrative Agent	39

10.2	Delegation of Duties	40

10.3	Liability of Administrative Agent	40

10.4	Reliance by Administrative Agent	40

10.5	Notice of Default	41

10.6	Credit Decision; Disclosure of Information by Administrative Agent	41

10.7	Indemnification of Administrative Agent	41

10.8	Administrative Agent in Individual Capacity	42

10.9	Successor Administrative Agent	42

10.10	Tax Forms	43

10.11	Guaranty Matters	44

10.12	Administrative Agent May File Proofs of Claim	45

10.13	Syndication Agent	45

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SECTION 11	MISCELLANEOUS	46

11.1	Amendments and Waivers	46

11.2	Notices	46

11.3	No Waiver; Cumulative Remedies	47

11.4	Costs and Expenses	47

11.5	Company Indemnification	47

11.6	Payments Set Aside	48

11.7	Severability	48

11.8	Assignments, Participations, etc.	48

11.9	Confidentiality	51

11.10	Set-off	51

11.11	Notification of Addresses, Lending Offices, Etc.	52

11.12	Counterparts	52

11.13	No Third Parties Benefited	52

11.14	Governing Law and Jurisdiction	52

11.15	Waiver of Jury Trial	52

11.16	Entire Agreement	53

11.17	Survival of Representations and Warranties	53

11.18	Interest Rate Limitation	53

11.19	USA PATRIOT Act Notice	54

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SCHEDULES

Schedule 2.1	Loans / Percentages
Schedule 6.5	Litigation
Schedule 6.6	ERISA
Schedule 6.11	Environmental Matters
Schedule 6.13	Intellectual Property Disputes
Schedule 6.14	Subsidiaries and Minority Interests
Schedule 8.1	Permitted Liens
Schedule 8.5	Permitted Subsidiary Indebtedness
Schedule 8.7	Contingent Obligations
Schedule 11.2	Lending Offices; Addresses for Notices

EXHIBITS

Exhibit A	Form of Note
Exhibit B	Form of Guaranty
Exhibit C	Form of Compliance Certificate
Exhibit D-1	Form of Legal Opinion of Counsel to the Company
Exhibit D-2	Form of Legal Opinion of General Counsel of the Company
Exhibit E	Form of Assignment and Acceptance Agreement

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This TERM LOAN AGREEMENT (this “Agreement”) dated as of February 11, 2005 is among XXXXXX & XXXXXXXX CORPORATION, a Wisconsin corporation (the “Company”), the various financial institutions from time to time party to this Agreement (collectively the “Banks” and individually each a “Bank”) and BANK OF AMERICA, N.A. (“Bank of America”), as administrative agent for the Banks.

WHEREAS, the Banks have agreed to make term loans to the Company on the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

SECTION 1

DEFINITIONS

1.1 Certain Defined Terms. The following terms have the following meanings:

“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).

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, membership interests, by contract, or otherwise.

“Administrative Agent” means Bank of America in its capacity as administrative agent for the Banks hereunder, and any successor agent arising under Section 10.9.

“Agent-Related Persons” means, at any time, the Administrative Agent at such time, together with its Affiliates (including, in the case of Bank of America, the Arranger), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

“Agreement” has the meaning specified in the introductory paragraph.

“Applicable Margin” means the percentage rate per annum determined from time to time in accordance with Schedule 1.1.

“Arranger” means Banc of America Securities LLC, in its capacity as lead arranger and book manager.

“Assignee” has the meaning specified in subsection 11.8(a).

“Assignment and Acceptance” has the meaning specified in subsection 11.8(a).

“Attorney Costs” means and includes all reasonable fees and charges of any law firm or other external counsel, the reasonable allocated cost of internal legal services and the reasonable disbursements of internal counsel.

“Bank” has the meaning specified in the introductory paragraph.

“Bank of America” has the meaning specified in the introductory paragraph.

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.).

“Base Rate” means, for any day, a rate of interest per annum equal to the higher of (a) the sum of the Federal Funds Rate for such day plus 0.50% per annum and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“Base Rate Group” means a Group comprised of Base Rate Tranches.

“Base Rate Tranche” has the meaning specified in Section 2.1.2.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Payment Office is located and, if such day relates to any interest rate setting as to the Offshore Rate, any day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.

“Capital Lease” has the meaning specified in the definition of “Capital Lease Obligations.”

“Capital Lease Obligations” means the principal component of all monetary obligations of the Company or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease (a “Capital Lease”).

“Change in Control” means (a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under

the Exchange Act) of 30% or more of the outstanding shares of voting stock of the Company, or (b) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the Company’s board of directors (together with any new directors whose election by the Company’s board of directors or whose nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reasons other than death or disability to constitute a majority of the directors then in office.

“Closing Date” means February 11, 2005 or such other date on which all conditions precedent set forth in Section 5.1 are satisfied or waived by all Banks (or, in the case of Section 5.1.5, waived by the Person entitled to receive any applicable payment).

“Code” means the Internal Revenue Code of 1986.

“Company” has the meaning specified in the introductory paragraph.

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

“Computation Period” means a period of four consecutive fiscal quarters ending on the last day of a fiscal quarter.

“Consolidated Interest Expense” means, for any period, the sum of (a) total interest expense (including interest expense attributable to Capital Leases in accordance with GAAP) of the Company and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, all as determined on a consolidated basis for the Company and its consolidated Subsidiaries in accordance with GAAP; and (b) to the extent not included in clause (a), the consolidated yield or discount accrued during such period on all Securitization Obligations.

“Consolidated Net Income” means, for any period, the aggregate of the net income of the Company and its Subsidiaries for such period, determined in accordance with GAAP on a consolidated basis; provided that the net income of any other Person which is not a Subsidiary of the Company shall be included in the Consolidated Net Income of the Company only to the extent of the amount of cash dividends or distributions paid to the Company or to a consolidated Subsidiary of the Company. There shall be excluded in computing Consolidated Net Income for the Company the excess (or the deficit), if any, of (i) any non-cash gain which must be treated as an extraordinary item under GAAP or any gain realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any capital stock owned by the Company or its Subsidiaries over (ii) any non-cash loss which must be treated as an extraordinary item under GAAP or any loss realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any capital stock owned by the Company or its Subsidiaries.

“Consolidated Net Worth” means the Company’s consolidated stockholder’s equity; provided that foreign currency translation adjustments under Financial Accounting Standards Board Statement No. 52, “Foreign Currency Translation” and any negative adjustment in prepaid

pension and accrued pension costs not exceeding $80,000,000 shall not be taken into account in calculating Consolidated Net Worth.

“Consolidated Total Assets” means the total consolidated assets of the Company and its Subsidiaries, in each case determined in accordance with GAAP.

“Contingent Obligation” means, as to any Person (without duplication), any direct or indirect liability of that Person, whether or not contingent, with or without recourse, (a) with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”), including any obligation of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance or provide funds for the payment or discharge of any such primary obligation, or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b) with respect to any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments; or (c) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered. The amount of any Contingent Obligation shall, in the case of Guaranty Obligations, be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof; provided that if any Guaranty Obligation (a) is limited to an amount less than the obligations guaranteed or supported, the amount of the corresponding Contingent Obligation shall be equal to the lesser of the amount determined pursuant to the initial clause of this sentence and the amount to which such guaranty is so limited or (b) is limited to recourse against a particular asset or assets of such Person, the amount of the corresponding Contingent Obligation shall be equal to the lesser of the amount determined pursuant to the initial clause of this sentence and the fair market value of such asset or assets at the date for determination of the amount of the Contingent Obligation. In the case of other Contingent Obligations, such Contingent Obligations shall be equal to the maximum reasonably anticipated liability in respect thereof.

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

“Default” means any event or circumstance which, with the giving of notice pursuant to this Agreement, the expiration of any cure period specified herein, or both, would (if not cured or otherwise remedied during such cure period) constitute an Event of Default.

“Disposition” has the meaning specified in Section 8.2.

“Dollars”, “dollars” and “$” each mean lawful money of the United States.

“Domestic Subsidiary” means any Subsidiary of the Company other than a Foreign Subsidiary.

“EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, determined in accordance with GAAP, the sum of Consolidated Net Income (or loss) for such period plus, to the extent deducted in the determination of such Consolidated Net Income (or loss), Consolidated Interest Expense, federal, state, local and foreign income taxes (including franchise taxes based upon income), depreciation and amortization.

“Eligible Assignee” has the meaning specified in subsection 11.8(f).

“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment.

“Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case relating to environmental, health, safety and land use matters.

“Equity Issuance” means the issuance of equity securities or interests by the Company or any Subsidiary (other than (a) issuances of equity securities or interests to the Company or any Subsidiary and (b) issuances of equity in connection with employee benefit and compensation plans).

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

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company 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 the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization the liability with respect to which has not been satisfied; (d) the filing of a notice of intent to terminate a Pension Plan or a Multiemployer Plan that has any Unfunded Pension Liability, the treatment of a Plan amendment with respect to a Pension Plan or a Multiemployer Plan that has any Unfunded Pension Liability as a termination under Section 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 PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.

“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Bank, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).

“Event of Default” means any of the events or circumstances specified in Section 9.1.

“Exchange Act” means the Securities Exchange Act of 1934.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“Foreign Subsidiary” means, with respect to any Person, each Subsidiary of such Person which is organized under the laws of any jurisdiction other than, and which is conducting substantially all of its business outside of, the United States or any state thereof.

“FRB” means the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.

“Further Taxes” means any and all present or future taxes, levies, assessments, imposts, duties, deductions, fees, withholdings or similar charges (including net income taxes and franchise taxes), and all liabilities with respect thereto, imposed by any jurisdiction on account of amounts payable or paid pursuant to Section 4.1.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the applicable date.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any

entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Group” has the meaning specified in Section 2.1.2.

“Guarantor” means each Domestic Subsidiary that is a Material Subsidiary or has executed and delivered a counterpart of a Guaranty (which has not been released).

“Guaranty” means a guaranty substantially in the form of Exhibit G.

“Guaranty Obligation” has the meaning specified in the definition of “Contingent Obligation.”

“Hedging Agreement” means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, foreign exchange agreement, forward rate agreement or other agreement or arrangement designed to protect a Person against fluctuations in interest exchange rates, currency exchange rates or commodity prices.

“Indebtedness” of any Person means, without duplication, (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than (i) trade and similar accounts payable and accrued expenses, in each case arising in the ordinary course of business and, in the case of accounts payable, on ordinary terms, and (ii) accrued pension cost, employee benefits and postretirement health care obligation arising in the ordinary course of business); (c) all non-contingent reimbursement or payment obligations with respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement (other than an operating lease), or incurred as financing, in either case with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (f) all principal obligations with respect to Capital Leases; (g) all indebtedness referred to in clauses (a) through (f) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; (h) all Securitization Obligations of such Person; (i) all Synthetic Lease Obligations of such Person; and (j) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above. In the event any of the foregoing Indebtedness is limited to recourse against a particular asset or assets of such Person, the amount of the corresponding Indebtedness shall be equal to the lesser of the amount of such Indebtedness and the fair market value of such asset or assets at the date for determination of the amount of such Indebtedness. In addition, the amount of any Indebtedness which is also a Contingent Obligation shall be determined as provided in the definition of “Contingent Obligation.”

“Indemnified Liabilities” has the meaning specified in Section 11.5.

“Indemnified Person” has the meaning specified in Section 11.5.

“Independent Auditor” has the meaning specified in subsection 7.1(a).

“Insolvency Proceeding” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors; undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

“Interest Coverage Ratio” means, for any Computation Period, the ratio of (a) EBITDA for such Computation Period to (b) Consolidated Interest Expense for such Computation Period.

“Interest Payment Date” means (a) as to any Base Rate Tranche, the last day of each calendar quarter; and (b) as to any Offshore Rate Tranche, the last day of each Interest Period for such Tranche and, if such Interest Period exceeds three months, the date which is three months after the first day of such Interest Period.

“Interest Period” means, with respect to any Offshore Rate Group, each period commencing on the Closing Date, on the date of conversion of such Group to an Offshore Rate Group or on the last day of the preceding Interest Period for such Group and ending on the date one, two, three or six months thereafter (or such other period as may be approved by all Banks) as selected by the Company pursuant to Section 2.1.3; provided that:

(a) if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the 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;

(d) the Company may not select any Interest Period that ends after August 11, 2006 if, after giving effect to such selection, the aggregate principal amount of all Groups having Interest Periods ending after the such date would exceed the aggregate principal amount of all Loans scheduled to be outstanding after giving effect to the payment due on such date pursuant to Section 2.3.

“IRS” means the Internal Revenue Service, and any Governmental Authority succeeding to any of its principal functions under the Code.

“Lending Office” means, as to any Bank, the office or offices of such Bank specified on Schedule 11.2, or such other office or offices as such Bank may from time to time notify the Company and the Administrative Agent.

“Leverage Ratio” means, for any Computation Period, the ratio of (a) Total Funded Debt as of the last day of such Computation Period to (b) EBITDA for such Computation Period.

“LIBOR” means, for any Interest Period:

(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate, as published by Reuters (or another commercially available source providing quotations of LIBOR designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or

(b) if the rate referenced in the preceding clause (a) does not appear on such service or such service shall not be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or

(c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of Bank of America’s Offshore Rate Tranche to be outstanding during such Interest Period and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the first day of such Interest Period.

“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by, conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease, and any financing lease having substantially the same economic effect as any of the foregoing) and any contingent or other agreement to provide any of the foregoing, but, in any such case, not including the interest of a lessor under an operating lease.

“Loan” means, with respect to any Bank, such Bank’s term loan to the Company hereunder; and Loans means all of the term loans made hereunder.

“Loan Documents” means this Agreement, any Note and the Guaranty.

“Loan Party” means the Company and each Guarantor.

“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the FRB.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, condition (financial or otherwise) or prospects of the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company to perform its obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company of any of the Loan Documents.

“Material Subsidiary” means, at any time, any Subsidiary of the Company the total assets of which constitute 10% or more of Consolidated Total Assets at such time.

“Maturity Date” means the earlier to occur of (a) February 11, 2008 and (b) the date on which the Obligations become due and payable pursuant to Section 9.2.

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

“Xxxxx’x Rating” means, at any time, the rating issued by Moody’s and then in effect with respect to the Company’s long term unsecured, senior, non-credit enhanced debt.

“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes, is making, or is obligated to make contributions or, during the preceding three calendar years, has made, or been obligated to make, contributions.

“Xxxxxx Assets” means the assets of Xxxxxx, Inc. purchased by the Company pursuant to the Asset Purchase Agreement dated as of January 25, 2005 by and among Xxxxxx, Inc., Xxxxxx Canada Co., Xxxxxx & Xxxxxxxx Power Products Group, LLC and Xxxxxx & Xxxxxxxx Canada Inc.

“Note” has the meaning specified in Section 3.2.

“Obligations” means all advances, debts, liabilities, obligations, covenants and duties arising under any Loan Document owing by the Company to any Bank, the Administrative Agent or any other Indemnified Person, whether direct or indirect (including those acquired by assignment pursuant to subsection 11.8(a)), absolute or contingent, due or to become due, now existing or hereafter arising.

“Offshore Rate” means, for any Interest Period, the rate of interest per annum (rounded upward to the next 1/100th of 1%) determined by the Administrative Agent as follows:


Offshore Rate =		LIBOR
Offshore Rate =		1.00 - Eurodollar Reserve Percentage.

The Offshore Rate shall be adjusted automatically as to all Offshore Rate Tranches then outstanding as of the effective date of any change in the Eurodollar Reserve Percentage.

“Offshore Rate Group” means a Group comprised of Offshore Rate Tranches.

“Offshore Rate Tranche” has the meaning specified in Section 2.1.2.

“Organization Documents” means (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation; (b) for any partnership, the partnership agreement and any other organizational documents of such partnership; (c) for any limited liability company, the operating agreement, any membership agreement and any other organizational document of such limited liability company; and (d) for any other entity, the organizational documents of such entity.

“Other Taxes” means any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Documents.

“Participant” has the meaning specified in subsection 11.8(d).

“Payment Office” means the address for payments set forth on Schedule 11.2 or such other address as the Administrative Agent may from time to time specify in accordance with Section 11.2.

“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.

“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA (other than a Multiemployer Plan) which the Company sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.

“Permitted Liens” has the meaning specified in Section 8.1.

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the Company sponsors or maintains or to which the Company makes, is making, or is obligated to make contributions (other than a Multiemployer Plan) and includes any Pension Plan.

“Percentage” means, with respect to any Bank, the percentage specified opposite such Bank’s name on Schedule 2.1 or in the most recent Assignment and Acceptance to which such Bank is a party.

“Reportable Event” means, any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.

“Required Banks” means (a) prior to the making of the Loans, Banks that have more than 50% of the commitments to make Loans hereunder; and (b) thereafter, Banks holding more than 50% of the aggregate unpaid principal amount of the Loans; provided that so long as Bank of America and LaSalle Bank National Association are the only Banks, “Required Banks” shall mean Banks holding 100% of the aggregate unpaid principal amount of the Loans or 100% of the commitments to make loans, as applicable.

“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Officer” means the chief executive officer, the president, any vice president, the chief financial officer or the treasurer of the Company, or any other officer having substantially the same authority and responsibility.

“S&P” means Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies, and any successor thereto.

“S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect to the Company’s long term unsecured, senior, non-credit enhanced debt.

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

“Securitization Obligations” means, with respect to any Securitization Transaction, the aggregate investment or claim held at any time by all purchasers, assignees or transferees of (or of interests in) or holders of obligations that are supported or secured by accounts receivable, lease receivables and other rights to payment in connection with such Securitization Transaction.

“Securitization Transaction” means any sale, assignment or other transfer by the Company or any Subsidiary of accounts receivable, lease receivables or other payment obligations owing to the Company or such Subsidiary or any interest in any of the foregoing, together in each case with any collections and other proceeds thereof, any collection or deposit accounts related thereto, and any collateral, guaranties or other property or claims in favor of the Company or such Subsidiary supporting or securing payment by the obligor thereon of, or otherwise related to, any such receivables.

“Specified Subsidiary” means each Material Subsidiary and each other Subsidiary that at the relevant time is a Guarantor.

“Subsidiary” of a Person means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting stock, membership interests or other equity interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by such Person, or one or more of the Subsidiaries of such Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Company.

“Surety Instruments” means all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds, performance bonds and similar instruments.

“Syndication Agent” means LaSalle Bank National Association.

“Synthetic Lease Obligations” means obligations under operating leases (as determined pursuant to Statement of Financial Accounting Standards No. 13) of properties which are reported for United States income tax purposes as owned by the Company or a consolidated Subsidiary. The amount of Synthetic Lease Obligations under any such lease shall be determined in accordance with GAAP as if such operating lease were a capital lease.

“Taxes” means any and all present or future taxes, levies, assessments, imposts, duties, deductions, fees, withholdings, assessments or similar charges, and all liabilities with respect thereto, excluding, in the case of each Bank and the Administrative Agent, respectively, taxes imposed on or measured by its net income by the jurisdiction (or any political subdivision thereof) under the laws of which such Bank or the Administrative Agent, as the case may be, is organized or maintains a lending office.

“Total Funded Debt” means, at any time, the sum of the current and long-term indebtedness obligations (other than intercompany indebtedness obligations) for money borrowed, drawn and unreimbursed letters of credit, drawn and unreimbursed surety bonds, the amount of mandatory redeemable preferred stock of the Company, Capital Lease Obligations, Securitization Obligations, Synthetic Lease Obligations and, without duplication, Contingent Obligations in respect of any of the foregoing, in each case, of the Company and its Subsidiaries on a consolidated basis.

“Tranche” has the meaning specified in Section 2.1.2.

“Type” means the characterization of (a) a Tranche as a Base Rate Tranche or an Offshore Rate Tranche or (b) a Group as a Base Rate Group or an Offshore Rate Group.

“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that 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.” each means the United States of America.

“Wholly-Owned Subsidiary” means any Subsidiary in which (other than, in the case of a corporation, directors’ qualifying shares required by law) 100% of the capital stock, partnership interests, membership interests or other equity interests is, at the time as of which any determination is being made, owned, beneficially and of record, by the Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.

1.2 Other Interpretive Provisions.

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

(b) The words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(c) (i) The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

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

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

(e) The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

(f) This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.

(g) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Administrative Agent, the Company and the other parties, and are the products of all parties. Accordingly, it shall not be construed against the Banks or the Administrative Agent merely because of the Administrative Agent’s or Banks’ involvement in their preparation.

(h) Unless otherwise specified, any reference to a particular time of day shall mean such time in Chicago, Illinois.

1.3 Accounting Principles.

(a) Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, consistently applied. If any financial statements prepared by or on behalf of the Company apply accounting principles other than GAAP (including as a result of any event described in subsection 1.3(b)), the compliance certificate

accompanying such financial statements shall include information in reasonable detail reconciling such financial statements to GAAP to the extent relevant to the calculations set forth in such compliance certificate.

(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth herein and the Company or the Required Banks shall so request, the Administrative Agent, the Banks and the Company 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 Banks); provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP as in effect prior to such change.

SECTION 2

THE LOANS

2.1 Term Loans.

2.1.1 Commitment to Make Loans. Subject to the terms and conditions of this Agreement, each Bank, severally and for itself alone, agrees to make a term loan to the Company on the Closing Date in an amount equal to such Bank’s Percentage of $125,000,000.

2.1.2 Tranches and Groups of Loans. Each Bank’s Loan may be divided into tranches (each a “Tranche”) that bear interest based upon the Base Rate (a “Base Rate Tranche”) or the Offshore Rate for a particular Interest Period (an “Offshore Rate Tranche”). Tranches of the same Type and, in the case of Offshore Rate Tranches, having the same Interest Period are sometimes called “Groups”. Multiple Groups may be outstanding at the same time; provided that (a) not more than three Offshore Rate Groups shall be in effect at any time; (b) the aggregate principal amount of each Group shall be at least $5,000,000 or a higher integral multiple of $1,000,000; and (c) each Bank shall have a pro rata share (according to its Percentage) of each Group.

2.1.3 Selection of Interest Periods. (a) The Company shall give written notice to the Administrative Agent (which shall promptly notify each Bank) of its selection of the Type and amount of each initial Group no later than 10:00 A.M. on the Closing Date or, if any initial Group is to be an Offshore Rate Group, on the third Business Day prior to the Closing Date. Thereafter, the Company may, upon notice to the Administrative Agent in accordance with clause (b) below, (i) elect, as of any Business Day, to convert all or any portion of any outstanding Offshore Rate Group to a Base Rate Group, or vice versa or (ii) elect, as of the last day of the applicable Interest Period, to continue all or any portion of any Offshore Rate Group having an Interest Period expiring on such day for a new Interest Period.

(b) The Company shall give written or telephonic (followed promptly by written confirmation thereof) notice to the Administrative Agent of each proposed conversion or continuation not later than (i) in the case of conversion into a Base Rate Group, 10:00 A.M. on

the proposed date of such conversion; and (ii) in the case of a conversion into or continuation of an Offshore Rate Group, 10:00 A.M. at least three Business Days prior to the proposed date of such conversion or continuation. Each such notice shall specify (A) the proposed date of conversion or continuation; (B) the Group (or, subject to subsection 2.1.2(b), the relevant portion thereof) to be converted or continued; (C) the Type of Group resulting from the proposed conversion or continuation; and (D) in the case of conversion into, or continuation of, an Offshore Rate Group, the duration of the requested Interest Period therefor.

(c) If the Company fails to give timely notice of the continuation of an Offshore Rate Group, then such Group shall convert to a Base Rate Group on the last day of the applicable Interest Period therefor.

(d) Unless the Required Banks otherwise consent, during the existence of a Default or an Event of Default, the Company may not elect to convert any Base Rate Group into an Offshore Rate Group or to continue any Offshore Rate Group for a new Interest Period.

2.2 Prepayments.

(a) The Company may, at any time or from time to time, upon irrevocable notice to the Administrative Agent as described below, voluntarily prepay the Loans in whole or in part, in an aggregate amount of $5,000,000 or any higher integral multiple of $1,000,000. The Company shall deliver a notice of voluntary prepayment in accordance with Section 11.2 to be received by the Administrative Agent not later than 10:30 a.m. (a) in the case of prepayment of an Offshore Rate Tranche, at least two Business Days in advance of the prepayment date; and (b) in the case of prepayment of a Base Rate Tranche, on the prepayment date. In addition to the information required by subsection 2.2(b), each such notice shall specify the installment of the Loans to which such prepayment is to be applied (and, in the absence of such specification, such prepayment shall be applied to the Loans in the inverse order of the maturity of such installments). Amounts prepaid may not be reborrowed.

(b) The Company shall specify, in each notice of voluntary prepayment pursuant to subsection 2.2(a), the date and amount of such prepayment and the Groups (or portions thereof) to be prepaid. No such notice shall be revocable by the Company. The Administrative Agent will promptly notify each Bank of any notice of prepayment and of such Bank’s Percentage of such prepayment. Each prepayment of all or any portion of an Offshore Rate Group shall be accompanied by accrued interest to the date of prepayment on the amount prepaid and any amounts required to be paid pursuant to Section 4.4 as a result of such prepayment.

2.3 Repayment. The Company shall repay the Loans in two installments as follows: (a) $40,000,000 on the eighteen month anniversary of the Closing Date; and (b) the aggregate principal amount of all remaining Loans on the Maturity Date.

2.4 Interest.

(a) Each Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to (i) in the case of any Base Rate Tranche of such Loan, the Base Rate; and (ii) in the case of any Offshore Rate Tranche of such Loan, the sum of the Offshore Rate for each applicable Interest Period for such Tranche plus the Applicable Margin.

(b) Interest on each Loan (or the relevant portion thereof if the Loans are divided into Tranches) shall be paid in arrears on each Interest Payment Date and on the Maturity Date. Interest shall also be paid on the date of any payment or prepayment under Section 2.2, for the portion of the Loans so prepaid, and upon payment (including prepayment) in full thereof and, during the existence of any Event of Default, interest shall also be paid on demand of the Administrative Agent at the request or with the consent of the Required Banks.

(c) Notwithstanding subsection 2.4(a) and Section 4.5, while any Event of Default exists, for the period commencing after the Company’s receipt of notice from the Administrative Agent at the request, or with the consent, of the Required Banks or after acceleration, the Company shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all outstanding Loans (or the relevant portions thereof) and, to the extent permitted by applicable law, all other Obligations, at a rate per annum which is determined by adding 2% per annum to the otherwise applicable interest rate for such Loans (or the relevant portions thereof) or, in the case of other Obligations, at a rate per annum equal to the Base Rate plus 2%; provided that, on and after the expiration of any Interest Period applicable to any Offshore Rate Tranche outstanding on the date of occurrence of such Event of Default for the period commencing after the Company’s receipt of notice from the Administrative Agent at the request, or with the consent, of the Required Banks or acceleration, the principal amount of such Loan shall, during the continuation of such Event of Default or after acceleration, bear interest at a rate per annum equal to the Base Rate plus 2%.

(d) Anything herein to the contrary notwithstanding, the Obligations of the Company to any Bank hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by such Bank would be contrary to the provisions of any law applicable to such Bank limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Bank, and in such event the Company shall pay such Bank interest at the highest rate permitted by applicable law.

(e) All computations of interest on Base Rate Tranches when the Base Rate is determined by reference to Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of interest shall be made on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a year of 365 or 366 days). Interest shall accrue from the first day of each relevant period to the last day of such period.

2.5 Fees. The Company shall pay fees to the Arranger, the Administrative Agent and the Syndication Agent, in each case for such Person’s own account, as agreed among the Company and the applicable Person from time to time.

2.6 Payments by the Company.

(a) All payments to be made by the Company shall be made without set-off, recoupment or counterclaim. Except as otherwise expressly provided herein, all payments by the Company shall be made to the Administrative Agent for the account of the Banks at the Payment Office. Such payments shall be made in immediately available funds no later than 12:00 noon

on the date specified herein. The Administrative Agent will promptly distribute to each Bank its Percentage (or other applicable share as expressly provided herein) of such principal, interest, fees or other amounts, in like funds as received. Any payment which is received by the Administrative Agent later than 12:00 noon shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue.

(b) Whenever any payment is due on a day other than a Business Day, such payment shall be made on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

(c) Unless the Administrative Agent receives notice from the Company prior to the date on which any payment is due to the Banks that the Company will not make such payment in full as and when required, the Administrative Agent may assume that the Company has made such payment in full to the Administrative Agent on such date in immediately available funds and the Administrative Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Bank on such due date an amount equal to the amount then due such Bank. If and to the extent the Company has not made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent on demand such amount distributed to such Bank, together with interest thereon at the Federal Funds Rate.

2.7 Sharing of Payments, Etc. If, other than as expressly provided elsewhere herein, any Bank shall obtain on account of its Loan any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in excess of its Percentage (or other share contemplated hereunder) of payments to all Banks on account of all Loans, such Bank shall immediately (a) notify the Administrative Agent of such fact and (b) purchase from the other Banks such participations in their Loans as shall be necessary to cause such purchasing Bank to share the excess payment pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Bank, such purchases shall to that extent be rescinded and each other Bank shall repay to the purchasing Bank the purchase price paid therefor, together with an amount equal to such paying Bank’s ratable share (according to the proportion of (i) the amount of such paying Bank’s required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered. The Company agrees that any Bank so purchasing a participation from another Bank may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off, but subject to Section 11.10) with respect to such participation as fully as if such Bank were the direct creditor of the Company in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.7 and will in each case notify the Banks following any such purchases or repayments.

SECTION 3

EVIDENCE OF LOANS

3.1 Loan Accounts. The Loan made by each Bank shall be evidenced by one or more loan accounts or records maintained by such Bank in the ordinary course of business. The loan

accounts or records maintained by the Administrative Agent and each Bank shall be prima facie evidence of the amount of the Loans made by the Banks to the Company and the interest and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Company hereunder to pay any amount owing with respect to the Loans.

3.2 Notes. Upon the request of any Bank made through the Administrative Agent, the Loan made by such Bank may be evidenced by a note in substantially the form of Exhibit A (each a “Note”), instead of or in addition to loan accounts. Each such Bank shall endorse on the schedules annexed to its Note the amount of its Loan and the amount of each payment of principal made by the Company with respect thereto. Each such Bank is irrevocably authorized by the Company to endorse its Note and each Bank’s record shall be deemed prima facie correct; provided that the failure of a Bank to make, or an error in making, a notation thereon with respect to any Loan shall not limit or otherwise affect the obligations of the Company hereunder or under such Note to pay the principal of and interest on such Loan.

SECTION 4

TAXES, YIELD PROTECTION AND ILLEGALITY

4.1 Taxes.

(a) Any and all payments by the Company to each Bank or the Administrative Agent under this Agreement and any other Loan Document shall be made free and clear of, and without deduction or withholding for, any Taxes. In addition, the Company shall pay all Other Taxes.

(b) If the Company shall be required by law to deduct or withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable hereunder to any Bank or the Administrative Agent, then:

(i) the sum payable shall be increased as necessary so that, after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 4.1), such Bank or the Administrative Agent, as the case may be, receives and retains an amount equal to the sum it would have received and retained had no such deductions or withholdings been made;

(ii) the Company shall make such deductions and withholdings;

(iii) the Company shall pay the full amount deducted or withheld to the relevant taxing authority or other authority in accordance with applicable law; and

(iv) the Company shall also pay to each Bank or the Administrative Agent for the account of such Bank, at the time interest is paid, Further Taxes in the amount that the respective Bank specifies as necessary to preserve the after-tax yield such Bank would have received if such Taxes, Other Taxes or Further Taxes had not been imposed.

(c) The Company agrees to indemnify and hold harmless each Bank and the Administrative Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in

the amount that the respective Bank specifies as necessary to preserve the after-tax yield such Bank would have received if such Taxes, Other Taxes or Further Taxes had not been imposed, and any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment under this subsection (c) shall be made within 30 days after the date the applicable Bank or the Administrative Agent makes written demand therefor.

(d) Within 30 days after the date of any payment by the Company of Taxes, Other Taxes or Further Taxes, the Company shall furnish to each Bank or the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory to such Bank or the Administrative Agent.

(e) If the Company is required to pay any amount to any Bank or the Administrative Agent pursuant to subsection 4.1(b) or (c), then such Bank shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to eliminate any such additional payment by the Company which may thereafter accrue, if such change in the sole judgment of such Bank is not otherwise disadvantageous to such Bank.

4.2 Illegality. If any change in (including the adoption of any new) applicable laws or regulations, or any change in the interpretation of applicable laws or regulations by any governmental or other regulatory body charged with the administration thereof, should make it (or in the good faith judgment of any Bank cause a substantial question as to whether it is) unlawful for any Bank to make, maintain or fund a Tranche of its Loan at the Offshore Rate, then (a) such Bank shall promptly notify the Company and the Administrative Agent and (b) beginning on the last day of each current Interest Period (or on such earlier date as may be required by the relevant law, regulation or interpretation) and continuing for so long as such circumstances remain in effect, such Tranche shall (subject to subsection 2.4(c)) bear interest at the Base Rate.

4.3 Increased Costs and Reduction of Return.

(a) If any Bank determines that, due to either (i) the introduction of or any change (other than any change by way of imposition of or increase in reserve requirements included in the calculation of the Offshore Rate) in the interpretation of any law or regulation after the date of this Agreement or (ii) the compliance by that Bank with any guideline or request from any central Bank or other Governmental Authority (whether or not having the force of law) after the date of this Agreement, there shall be any increase in the cost to such Bank of agreeing to make or making, funding or maintaining its Loan (or any Tranche thereof), then the Company shall be liable for, and shall from time to time, within 10 days after demand in compliance with Section 4.6 (with a copy of such demand to be sent to the Administrative Agent), pay to the Administrative Agent for the account of such Bank, additional amounts as are sufficient to compensate such Bank for such increased costs.

(b) If any Bank shall have determined that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central Bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv)

compliance by such Bank (or its Lending Office) or any corporation controlling such Bank with any Capital Adequacy Regulation, in any such case, after the date of this Agreement affects or would affect the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank and (taking into consideration such Bank’s or such corporation’s policies with respect to capital adequacy and such Bank’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Loan (or, prior to the Closing Date, its commitment to make its Loan), then, within 10 days after demand in compliance with Section 4.6 of such Bank to the Company through the Administrative Agent, the Company shall pay to such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank for such increase.

4.4 Funding Losses. The Company shall reimburse each Bank and hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of: (a) the failure of the Company to make on a timely basis any payment of principal of any Offshore Rate Tranche; (b) the failure of the Company to make any prepayment of any Offshore Rate Tranche in accordance with Section 2.2; or (c) the prepayment or other payment (including after acceleration thereof) of a Offshore Rate Tranche on a day that is not the last day of the relevant Interest Period. For purposes of calculating amounts payable by the Company to the Banks under this Section 4.4 and under subsection 4.3(a), each Offshore Rate Tranche maintained by a Bank (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at the LIBOR used in determining the Offshore Rate for such Tranche by a matching deposit or other borrowing in the interbank market for a comparable amount and for a comparable period, whether or not such Tranche is in fact so funded.

4.5 Inability to Determine Rates. If the Administrative Agent determines that for any reason adequate and reasonable means do not exist for determining the Offshore Rate for any requested Interest Period, or that the Offshore Rate for any requested Interest Period does not adequately and fairly reflect the cost to the Banks of funding such their Offshore Rate Tranches, the Administrative Agent will promptly so notify the Company and each Bank thereof and, so long as such circumstances shall continue, the relevant Group shall bear interest at the Base Rate.

4.6 Certificates of Banks. Any Bank or Participant claiming reimbursement or compensation under this Section 4 shall deliver to the Company (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the basis for, and a calculation of, the amount payable to such Bank or Participant hereunder and such certificate shall be conclusive and binding on the Company in the absence of manifest error. In determining such amount, the Administrative Agent or such Bank or Participant may use any reasonable averaging and attribution methods. Notwithstanding anything to the contrary contained in this Agreement, no amounts shall be payable by the Company pursuant to Section 4.3 or 4.4 with respect to any period commencing more than 180 days before the delivery of the certificate contemplated by this Section 4.6 unless such amounts are claimed as a result of the retroactive effect of any newly enacted or adopted law, rule or regulation and such certificate is delivered within 180 days after such enactment or adoption.

4.7 Substitution of Banks. Upon the receipt by the Company from any Bank (an “Affected Bank”) of a claim for compensation under Section 4.1 or 4.3 or a notice of the type

described in Section 4.2, the Company may: (i) request one or more of the other Banks to acquire all or part of such Affected Bank’s Loan; and/or (ii) designate a replacement bank or financial institution satisfactory to the Company to acquire and assume all or part of such Affected Bank’s Loan (a “Replacement Bank”). Any such designation of a Replacement Bank under clause (ii) shall be subject to the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), and any such substitution shall in any event be effective upon satisfaction of the conditions set forth in Section 11.8.

4.8 Survival. The agreements and obligations of the Company in this Section 4 shall survive the payment of all other Obligations.

SECTION 5

CONDITIONS PRECEDENT

5.1 Conditions Precedent. The obligation of each Bank to make its Loan is subject to the condition that (i) no Default or Event of Default shall exist or would result from the making of the Loans; (ii) each of the representations and warranties set forth in Section 6 shall be true and correct; and (iii) the Administrative Agent shall have received on or before the Closing Date all of the following, in form and substance reasonably satisfactory to the Administrative Agent, and (except for any Note) in sufficient copies for each Bank.

5.1.1 Notes. All Notes requested by Banks pursuant to Section 3.2.

5.1.2 Resolutions; Incumbency. A certificate of the Secretary or an Assistant Secretary of the Company and each Guarantor certifying (i) resolutions of the board of directors or equivalent governing body of such entity authorizing the execution and delivery by such entity of the Loan Documents to which it is a party; and (ii) the names and true signatures of the officers of such entity authorized to execute and deliver the Loan Documents to which such entity is a party.

5.1.3 Organization Documents; Good Standing. The Organization Documents of the Company and each Guarantor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of the Company and each Guarantor as of such date; and a good standing certificate (or the equivalent) as of a recent date for Company and each Guarantor from the Secretary of State (or comparable officer) of the jurisdiction of its organization.

5.1.4 Guaranty. A counterpart of the Guaranty signed by sufficient Subsidiaries to satisfy the requirements of Section 7.13.

5.1.5 Legal Opinions. An opinion of each of (i) Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties, substantially in the form of Exhibit D-1, and (ii) Xxxxx Xxxx, Esq., associate general counsel of the Company, substantially in the form of Exhibit D-2, addressed to the Administrative Agent and the Banks.

5.1.6 Payment of Fees. Evidence of payment by the Company of all accrued and unpaid fees to the extent due and payable on the Closing Date.

5.1.7 Certificate. A certificate signed by a Responsible Officer on behalf of the Company, dated as of the Closing Date, stating that: (i) the representations and warranties contained in Section 6 are true and correct on and as of such date, as though made on and as of such date; (ii) no Default or Event of Default exists or would result after giving effect to the Loans; and (iii) no event or circumstance has occurred since June 27, 2004 that has resulted or could reasonably be expected to result in a Material Adverse Effect.

5.1.8 Compliance Certificate. A Compliance Certificate (with calculations of covenants as of December 26, 2004.

5.1.9 Bankruptcy Court Approval. An order issued by the United States Bankruptcy Court for the Middle District of Tennessee under Section 363 of the Bankruptcy Code approving the purchase by the Company of the Xxxxxx Assets.

5.1.10 Other Documents. Such other approvals, opinions, documents or materials as the Administrative Agent or any Bank may reasonably request.

SECTION 6

REPRESENTATIONS AND WARRANTIES

The Company represents and warrants to the Administrative Agent and each Bank on the Closing Date that:

6.1 Existence and Power. The Company and each of its Specified Subsidiaries:

(a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization;

(b) has the power and authority and all governmental licenses, authorizations, consents and approvals (i) to own its assets, carry on its business and (ii) in the case of the Company, to execute, deliver, and perform its obligations under the Loan Documents to which it is a party;

(c) is duly qualified as a foreign entity and is licensed and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification or license, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and

(d) is in compliance in all material respects with all Requirements of Law;

except, in the case of clauses (b)(i), (c) and (d), where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.2 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party have been duly authorized by all necessary organizational action, and do not and will not:

(a) contravene the terms of the Organization Documents of such Loan Party;

(b) conflict with or result in any breach or contravention of, or the creation of any Lien under, any document evidencing any material Contractual Obligation to which the Company or any of its Subsidiaries is a party or any order, injunction, writ or decree of any Governmental Authority to which the Company or any of its Subsidiaries or its property is subject; or

6.3 Governmental Authorization. No material approval, consent, exemption, authorization, or other action by, or material notice to, or material filing with, any Governmental Authority is necessary or required to be made by the Company or any Guarantor in connection with the execution, delivery or performance by, or enforcement against, the Company or any Guarantor of any Loan Document to which it is a party (other than customary post-closing filings with the SEC).

6.4 Binding Effect. Each Loan Document to which any Loan Party is a party constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.

6.5 Litigation. To the best of the Company’s knowledge, no litigation (including derivative actions), arbitration proceedings or governmental or regulatory proceedings are pending or threatened against the Company or any of its Subsidiaries that is reasonably likely to be adversely determined and, if so determined, would be reasonably likely to have a Material Adverse Effect, except as set forth in Schedule 6.5. Other than any liability incident to such litigation or proceedings, the Company does not have any material contingent liabilities not provided for or disclosed in the financial statements referred to in subsection 6.10(a) which could reasonably be expected to have a Material Adverse Effect.

6.6 ERISA Compliance. Except as specifically disclosed in Schedule 6.6:

(a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law except where the failure to be in compliance could not reasonably be expected to have a Material Adverse Effect. Each Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS and, to the best knowledge of the Company, nothing has occurred which would cause the loss of such qualification. The Company and each ERISA Affiliate has made all required contributions to any 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 Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect. There has been

no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan which 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 material Unfunded Pension Liability; (iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material 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 the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in any material liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

6.7 Use of Proceeds; Margin Regulations. The proceeds of the Loans will be used solely for the purposes set forth in and permitted by Section 7.12. Neither the Company nor any Subsidiary is generally engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

6.8 Title to Properties. The Company and each Specified Subsidiaries have 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 their respective businesses, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the property of the Company and its Specified Subsidiaries is subject to no Liens, other than Permitted Liens.

6.9 Taxes. The Company and its Subsidiaries have filed all Federal income and other material tax returns and reports required to be filed, and have paid all Federal income and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect.

6.10 Financial Condition.

(a) The (i) audited consolidated financial statements of the Company and its Subsidiaries for the fiscal year ended June 27, 2004 and (ii) unaudited consolidated financial statements of the Company and its Subsidiaries for the fiscal quarter ended December 26, 2004, in each case together with the related consolidated statements of income or operations, shareholders’ equity and cash flows for the period ended on such date, (x) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and, in the case of the unaudited quarterly financial statements, except for the absence of footnotes and subject to audit and normal year-end adjustments; and (y) fairly present the financial condition of the Company and its Subsidiaries as of the dates thereof and results of operations for the periods covered thereby.

(b) Since June 27, 2004, there has been no Material Adverse Effect.

6.11 Environmental Matters. The Company conducts in the ordinary course of business a review of the effect of existing Environmental Laws and existing Environmental Claims on its business, operations and properties, and as a result thereof the Company has reasonably concluded that, except as specifically disclosed in Schedule 6.11, such Environmental Laws and Environmental Claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

6.12 Regulated Entities. None of the Company, any Person controlling the Company, or any Subsidiary, is an “Investment Company” within the meaning of the Investment Company Act of 1940. The Company is not subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other Federal or state statute or regulation limiting its ability to incur Indebtedness.

6.13 Copyrights, Patents, Trademarks and Licenses, etc. The Company or its Specified Subsidiaries own or are licensed or otherwise have the right to use all of the patents, trademarks, service marks, trade names, copyrights, contractual franchises, authorizations and other rights that are reasonably necessary for the operation of their respective businesses, without known conflict with the rights of any other Person. To the best knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Company or any Specified Subsidiary infringes upon any rights held by any other Person. Except as specifically disclosed in Schedule 6.13, no claim or litigation regarding any of the foregoing is pending or threatened, and no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or, to the knowledge of the Company, proposed, which, in either case, could reasonably be expected to have a Material Adverse Effect.

6.14 Subsidiaries. As of the date of this Agreement, the Company has no Subsidiaries other than those specifically disclosed in part (a) of Schedule 6.14. The Company has no Material Subsidiaries or Specified Subsidiaries other than those specifically disclosed in part (b) of Schedule 6.14 or as disclosed pursuant to subsection 7.2(d) (including their jurisdictions of organization). As of the date of this Agreement, the Company has no equity investments in any other corporation or entity other than those specifically disclosed in part (c) of Schedule 6.14.

6.15 Insurance. The properties of the Company and its Specified Subsidiaries are insured in all material respects in accordance with Section 7.6.

6.16 Full Disclosure. None of the representations or warranties made by the Company in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in any exhibit, report, statement or certificate furnished by or on behalf of the Company or any Subsidiary in connection with the Loan Documents (including statements concerning the Company and its Subsidiaries in the offering and disclosure materials delivered by or on behalf of the Company to the Banks prior to the Closing Date), contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the

circumstances under which they are made, not misleading as of the time when made or delivered (it being understood that any projections and forecasts provided by the Company or any Subsidiary are based on good faith estimates and assumptions believed by the Company or such Subsidiary to be reasonable as of the date of the applicable projections or forecasts and that actual results during the periods covered by any such projections and forecasts may differ from projected or forecasted results).

SECTION 7

AFFIRMATIVE COVENANTS

So long as any Loan or other Obligation shall remain unpaid, unless the Required Banks waive compliance in writing:

7.1 Financial Statements. The Company shall deliver to the Administrative Agent (which shall promptly make available to each Bank):

(a) as soon as available (but not later than 10 days after the date normally required to be filed with the SEC) after the end of each fiscal year (commencing with fiscal year ending July 3, 2005), a copy of the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such year and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the opinion of Deloitte & Touche LLP or another nationally-recognized independent public accounting firm (“Independent Auditor”) which report shall state that such consolidated financial statements present fairly the financial position for the periods indicated in conformity with GAAP applied on a consistent basis. Such opinion shall not be qualified or limited, in either case, because of a restricted or limited examination by the Independent Auditor of any material portion of the Company’s or any Subsidiary’s records; and

(b) as soon as available (but not later than five days after the date normally required to be filed with the SEC) after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending March 27, 2005), a copy of the unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarter and the related consolidated statements of income, shareholders’ equity and cash flows for the period commencing on the first day and ending on the last day of such quarter, and certified by a Responsible Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good faith year-end audit adjustments and the absence of notes thereto), the financial position and the results of operations of the Company and the Subsidiaries.

7.2 Certificates; Other Information. The Company shall furnish to the Administrative Agent (which shall promptly make available to each Bank):

(a) concurrently with the delivery of the financial statements referred to in subsection 7.1(a), a certificate of the Independent Auditor stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default with respect to Sections 8.1, 8.5, 8.7, 8.10, 8.11, 8.12, 8.13 and 8.14, except as specified in such certificate;

(b) concurrently with the delivery of the financial statements referred to in subsections 7.1(a) and (b), a Compliance Certificate executed by a Responsible Officer;

(c) promptly, but not later than five days after the date of filing with the SEC, copies of all financial statements and reports that the Company sends to its shareholders, and copies of all financial statements and regular, periodical or special reports (including Forms 10-K, 10-Q (in each case excluding exhibits and schedules thereto unless requested by the Administrative Agent or a Bank) and 8-K) that the Company or any Subsidiary may make to, or file with, the SEC;

(d) promptly after the creation or acquisition of any Material Subsidiary, the name of such Material Subsidiary, a description of its business, its net worth and the value of its assets; and

(e) promptly, such additional information regarding the business, financial or organizational affairs of the Company or any Subsidiary as the Administrative Agent, at the request of any Bank, may from time to time request.

Documents required to be delivered pursuant to Section 7.1 or subsection 7.2(a), (b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company website on the Internet at the website address listed on Schedule 11.2; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which the Banks and the Administrative Agent have access (whether a commercial, third-party website or sponsored by the Administrative Agent); provided that: (i) the Company shall promptly deliver paper copies of any such documents specifically requested by the Administrative Agent (and the Administrative Agent shall forward paper copies thereof to any Bank upon request) and (ii) the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent (which shall notify each Bank) of the posting of any such document and, promptly upon request by the Administrative Agent, provide to the Administrative Agent by electronic mail an electronic version (i.e., a soft copy) of any such document specifically requested by the Administrative Agent. Notwithstanding anything contained herein, in every instance the Company shall be required to provide a paper copy of each Compliance Certificate required by subsection 7.2(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

7.3 Notices. The Company shall promptly notify the Administrative Agent (which shall promptly notify each Bank):

(a) upon any Responsible Officer becoming aware of the occurrence of any Default or Event of Default;

(b) upon any Responsible Officer becoming aware of any matter (including (i) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any

Specified Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Company or any Specified Subsidiary, including pursuant to any applicable Environmental Laws) that has resulted or could reasonably be expected to result in a Material Adverse Effect;

(c) upon any Responsible Officer becoming aware of the occurrence of any ERISA Event (but in no event more than 10 days after such ERISA Event), and deliver to the Administrative Agent and each Bank a copy of any notice with respect to such ERISA Event that is filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Company or any ERISA Affiliate with respect to such ERISA Event; and

(d) promptly after the president, chief financial officer, chief executive officer, treasurer or general counsel of the Company obtains knowledge thereof, notice of any change in the S&P Rating or the Xxxxx’x Rating.

Each notice under this Section 7.3 shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action the Company or any affected Subsidiary proposes to take with respect thereto and at what time. Each notice under subsection 7.3(a) shall describe the provisions of this Agreement or other Loan Document that have been breached or violated.

7.4 Preservation of Existence, Etc. The Company shall, and shall cause each Specified Subsidiary to:

(a) preserve and maintain in full force and effect its existence and good standing under the laws of its state or jurisdiction of organization except as otherwise permitted by this Agreement;

(b) preserve and maintain in full force and effect all governmental rights, privileges, qualifications, permits, licenses and franchises necessary or desirable in the normal conduct of its business except in connection with transactions permitted by Section 8.3 and sales of assets permitted by Section 8.2 and except for any of the foregoing the expiration or termination of which could not reasonably be expected to have a Material Adverse Effect;

(d) 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.

7.5 Maintenance of Property. The Company shall maintain, and shall cause each Subsidiary to maintain, and preserve all its material property which is used in its business in good working order and condition, ordinary wear and tear excepted, except where the failure to so maintain or preserve could not reasonably be expected to have a Material Adverse Effect.

7.6 Insurance. The Company shall maintain, and shall cause each Specified Subsidiary to maintain, with financially sound and reputable independent insurers, 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 as are customarily carried under similar circumstances by such other Persons; provided that the Company and its Specified Subsidiaries may self-insure against such risks and in such amounts as is usually self-insured by companies engaged in similar businesses and owning similar properties in the same general areas in which the Company and its Specified Subsidiaries operate.

7.7 Payment of Taxes. The Company shall, and shall cause each Specified Subsidiary to, pay and discharge as the same shall become due and payable, all material 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 and adequate reserves in accordance with GAAP are being maintained by the Company or such Specified Subsidiary.

7.8 Compliance with Laws. The Company shall comply, and shall cause each Subsidiary to comply, with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business, except where the failure to so comply could not reasonably be expected to cause a Material Adverse Effect.

7.9 Compliance with ERISA. The Company shall, and shall cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412 of the Code.

7.10 Inspection of Property and Books and Records. The Company shall maintain and shall cause each Subsidiary to maintain proper books of record and account, in which full, true and correct entries sufficient to prepare financial statements in conformity with GAAP, or applicable accounting procedures related to Foreign Subsidiaries, consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company and such Subsidiary. The Company shall permit, and shall cause each Specified Subsidiary to permit, representatives and independent contractors of the Administrative Agent and representatives of any Bank to visit and inspect any of their respective properties, to examine their respective organizational, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, and, in the presence of the Company if the Company shall so request, independent public accountants, all at the expense of such Bank or, if applicable, the Administrative Agent (or at the expense of the Company if (a) an Event of Default exists or (b) in the case of the Administrative Agent, the Required Banks have requested such visit, inspection, examination, copying or discussion) and at such reasonable times during normal business hours, upon reasonable advance notice to the Company and on only one occasion during any fiscal year; provided that when an Event of Default exists, the Administrative Agent or any Bank may do any of the foregoing at the expense of the Company at any time during normal business hours, as often as may be reasonably desired and without advance notice.

7.11 Environmental Laws. The Company shall, and shall cause each Subsidiary to, conduct its operations and keep and maintain its property in compliance with all Environmental Laws, except where the failure to do so or to so comply could not reasonably be expected to have a Material Adverse Effect.

7.12 Use of Proceeds. The Company shall (a) use the proceeds of the Loans for working capital, capital expenditures, commercial paper back-up and other lawful corporate purposes (including the purchase of the Xxxxxx Assets) and (b) not permit Margin Stock to constitute 25% or more of the value of the assets of the Company and its Subsidiaries which are subject to any limitation on sale or pledge, or any similar restriction, hereunder.

7.13 Guaranty. The Company shall cause each Domestic Subsidiary that is a Material Subsidiary to at all times guaranty the Obligations pursuant to the Guaranty; without limiting the foregoing, promptly upon the creation or acquisition of any Domestic Subsidiary that is a Material Subsidiary, or any Domestic Subsidiary becoming a Material Subsidiary as a result of a change in its assets or revenues compared to the assets or revenues of the Company and its Domestic Subsidiaries as a whole, cause such Material Subsidiary to execute and deliver to the Administrative Agent a counterpart of the Guaranty, together with such other documents as the Administrative Agent may reasonably request (including documents of the types described in Sections 5.1.2, 5.1.3 and 5.1.4).

SECTION 8

NEGATIVE AND FINANCIAL COVENANTS

So long as any Loan or other Obligation shall remain unpaid, unless the Required Banks waive compliance in writing:

8.1 Limitation on Liens. The Company shall not, and shall not permit any Specified Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its property, whether now owned or hereafter acquired, other than the following (“Permitted Liens”):

(a) any Lien existing on property of the Company or any Specified Subsidiary on the Closing Date and set forth in Schedule 8.1 securing Indebtedness outstanding on such date;

(b) any Lien created under any Loan Document;

(c) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that non-payment thereof is permitted by Section 7.7; provided that no notice of lien has been filed or recorded under the Code;

(d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business which are not delinquent for more than 90 days or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;

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

(f) Liens on the property of the Company or any Specified Subsidiary securing (i) the non-delinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other non-delinquent obligations of a like nature; in each case, incurred in the ordinary course of business and treating as non-delinquent any delinquency which is being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;

(g) Liens consisting of judgment or judicial attachment liens with respect to judgments that do not constitute an Event of Default and in the aggregate do not exceed $10,000,000;

(h) easements, rights-of-way, restrictions and other similar encumbrances 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 interfere with the ordinary conduct of the businesses of the Company and its Specified Subsidiaries;

(i) Liens on assets of any Specified Subsidiary which becomes a Subsidiary after the date of this Agreement; provided that such Liens existed at the time such Person became a Subsidiary and were not created in anticipation thereof;

(j) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the FRB, and (ii) such deposit account is not intended by the Company or any Specified Subsidiary to provide collateral to the depository institution;

(k) Liens securing reimbursement obligations incurred in the ordinary course of business for letters of credit, which Liens encumber only goods, or documents of title covering goods, which are purchased in transactions for which such letters of credit are issued;

(l) Liens securing obligations in respect of Capital Leases or operating leases (including leases giving rise to Synthetic Lease Obligations) on assets subject to such leases, provided that, in the case of Capital Leases and leases giving rise to Synthetic Lease Obligations, such leases are otherwise permitted hereunder;

(m) any Lien on property existing at the time of acquisition of such property by the Company or a Specified Subsidiary, or Liens to secure the payment of all or part of the purchase price of property upon the acquisition of property by the Company or a Specified Subsidiary or to secure any Indebtedness incurred or guaranteed prior to, at the time of, or within 90 days after, the later of the date of acquisition of such property and the date such property is placed in service, for the purpose of financing all or any part of the purchase price thereof, or Liens to

secure any Indebtedness incurred or guaranteed for the purpose of financing the cost to the Company or a Specified Subsidiary of improvements to such acquired property; provided, in each case, that (i) no such Lien shall at any time encumber any property other than the property financed by such Indebtedness and the proceeds thereof and (ii) the Indebtedness secured thereby shall not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;

(n) any extension, renewal or substitution of or for any of the foregoing Liens; provided that (i) the Indebtedness or other obligation or liability secured by the applicable Lien shall not exceed the Indebtedness or other obligation or liability existing immediately prior to such extension, renewal or substitution and (ii) the Lien securing such Indebtedness or other obligation or liability shall be limited to the property which, immediately prior to such extension, renewal or substitution, secured such Indebtedness or other obligation or liability;

(o) Liens arising in connection with Securitization Transactions to the extent permitted hereunder; and

(p) other Liens (in addition to those described above) securing Indebtedness or other obligations not at any time exceeding an amount equal to $35,000,000.

8.2 Disposition of Assets. The Company shall not, and shall not permit any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (collectively, a “Disposition”) (whether in one or a series of transactions) any property (including accounts and notes receivable, with or without recourse, and the sale of the stock or other equity interests of any Subsidiary) or enter into any agreement to do any of the foregoing, except:

(a) Dispositions of inventory, or used, worn-out, obsolete or surplus equipment and other assets, all in the ordinary course of business;

(b) Dispositions of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;

(c) Dispositions of assets received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(d) Dispositions of assets between and among the Company and its Wholly-Owned Subsidiaries and the Disposition of assets from any other Subsidiary to the Company or a Wholly-Owned Subsidiary of the Company; provided that at the time of any such Disposition, no Default or Event of Default shall exist or shall result after giving effect to such Disposition;

(e) Dispositions of accounts receivable, lease receivables and other rights to payment, and assets related thereto, in connection with Securitization Transactions;

(f) grants of non-exclusive licenses in intellectual property; and

(g) Dispositions not otherwise permitted hereunder which are made for fair market value; provided that (i) at the time of any such Disposition, no Default or Event of Default shall exist or shall result after giving effect to such Disposition and (ii) the aggregate consideration for all assets sold or otherwise disposed of by the Company and its Subsidiaries, together, shall not exceed (x) in any fiscal year 15% of Consolidated Total Assets as of the beginning of such fiscal year or (y) during the term of this Agreement, 35% of Consolidated Total Assets as of the fiscal quarter most recently ended prior to the Closing Date.

8.3 Consolidations and Mergers. The Company shall not, and shall not permit any Specified Subsidiary to, merge with or consolidate into any Person, except:

(a) the Company or any Specified Subsidiary may merge with or consolidate into any Person, provided that (i) at the time of such merger or consolidation, no Default or Event of Default shall exist or result after giving effect to the consummation of such merger or consolidation, (ii) if such transaction involves the Company, the Company shall be the continuing or surviving corporation, (iii) subject to the last paragraph of this Section 8.3, if such transaction involves a Wholly-Owned Subsidiary (and does not involve the Company), a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iv) subject to the last paragraph of this Section 8.3, if such transaction involves a Specified Subsidiary (and does not involve the Company or a Wholly-Owned Subsidiary), a Specified Subsidiary shall be the continuing or surviving Person;

(b) any Specified Subsidiary may sell all or substantially all of its assets (upon voluntary liquidation or otherwise), to the Company or another Wholly-Owned Subsidiary or as otherwise permitted by Section 8.2.

In addition, any Disposition which would be permitted by Section 8.2 may also be accomplished via a merger or consolidation of a Specified Subsidiary and such merger or consolidation shall be permitted pursuant to this Section 8.3.

8.4 Hostile Acquisitions; Foreign Investments. The Company shall not, and shall not permit any Subsidiary to, (a) make any Acquisition of any Person that has not been approved by the board of directors or similar governing body of such Person; (b) not commit, or otherwise make take steps, to make any Acquisition of any Person if the board of directors or similar governing body of such Person has announced that it will, or commenced litigation to, oppose such acquisition; or (c) except for extensions of credit arising from the sale of goods or services in the ordinary course of business consistent with past practice and securities received in connection with the bankruptcy or reorganization of suppliers and customers, (i) purchase or acquire, or make any commitment therefor, any capital stock, equity interest or any similar obligations or other securities of, or any interest in, any Person (including any Subsidiary) organized under the laws of any jurisdiction other than, or which is conducting substantially all of its business outside of, the United States or any state thereof (each a “Foreign Person”) or (ii) make or commit to make any advance, loan, extension of credit or capital contribution to, or any other investment in, any Foreign Person, to the extent that the aggregate amount of consideration (excluding any common stock of the Company) paid in connection with purchases and acquisitions described in clause (c)(i) plus the aggregate amount of investments described in clause (c)(ii) exceeds $250,000,000.

8.5 Limitation on Specified Subsidiary Indebtedness. The Company shall not permit any Specified Subsidiary to create, incur, assume, suffer to exist or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except:

(a) Indebtedness consisting of Contingent Obligations permitted pursuant to subsection 8.7(a), (b), (c), (e) or (f);

(b) Indebtedness existing on the Closing Date and set forth on Schedule 8.5;

(d) Securitization Obligations to the extent permitted by Section 8.10; and

(e) other Indebtedness (in addition to Indebtedness permitted by the other subsections of this Section 8.5) so long as (x) no Default or Event of Default shall have occurred or be continuing both before and after giving effect to the incurrence of any such Indebtedness and (y) the aggregate outstanding principal amount of such other Indebtedness does not at any time exceed 10% of Consolidated Net Worth as of the last day of the most recently ended fiscal quarter.

8.6 Transactions with Affiliates. The Company shall not, and shall not permit any Specified Subsidiary to, enter into any transaction with any Affiliate of the Company (other than a Specified Subsidiary), except upon fair and reasonable terms no less favorable to the Company or such Specified Subsidiary than would obtain in a comparable arm’s-length transaction with a Person not an Affiliate of the Company or such Specified Subsidiary.

8.7 Contingent Obligations. The Company shall not, and shall not permit any Specified Subsidiary to, create, incur, assume or suffer to exist any Contingent Obligations except:

(a) endorsements for collection or deposit in the ordinary course of business;

(b) Contingent Obligations of the Company and its Specified Subsidiaries existing as of the Closing Date and listed in Schedule 8.7;

(d) in addition to other Contingent Obligations permitted hereunder, Contingent Obligations which do not exceed $35,000,000 in the aggregate at any one time outstanding;

(e) Guaranty Obligations of the Company or any Specified Subsidiary with respect to any Indebtedness or other obligations of any of its Subsidiaries; and

(f) obligations under the Guaranty.

8.8 ERISA. The Company shall not, and shall not permit any of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan which has resulted or could reasonably expected to result in liability of the Company in an aggregate amount in excess of $10,000,000; or (b) engage in a transaction that could be reasonably expected to be subject to Section 4069 or 4212(c) of ERISA.

8.9 Limitation on Dividends and Stock Redemptions. At any time that the S&P Rating is lower than BBB- or the Xxxxx’x Rating is lower than Baa3, the Company shall not, nor shall it permit any Subsidiary to, declare or pay any dividends on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding (or any warrant, option or other right in respect thereof), except (i) any Subsidiary may declare and pay dividends to the Company or to a Wholly-Owned Subsidiary; (ii) any Subsidiary may repurchase its capital stock; (iii) the Company may purchase shares of its capital stock pursuant to the requirements of its employee benefit plans; and (iv) the Company may declare and pay other cash dividends and repurchase its outstanding capital stock (or warrants, options or other rights in respect thereof) in an aggregate amount not exceeding in any fiscal year the sum of (x) the Specified Amount (as defined below) plus (y) the excess of the Specified Amount for the immediately prior fiscal year over the aggregate amount of cash dividends paid during the immediately prior fiscal year. For purposes of the foregoing, “Specified Amount” means $50,000,000 plus, if the Company issues common stock as consideration in any Acquisition (a “Share Increase Event”), an amount equal to the product of (A) the number of shares of common stock converted or issued in connection with such Share Increase Event divided by the total number of shares outstanding immediately prior to such Share Increase Event multiplied by (B) the Specified Amount immediately prior to such Share Increase Event (after giving effect to any prior Share Increase Event).

8.10 Off Balance Sheet Transactions. The Company shall not at any time permit the sum of the (a) all Securitization Obligations of the Company and its Specified Subsidiaries, (b) all Synthetic Lease Obligations of the Company and its Specified Subsidiaries and (c) the principal amount of all other obligations in respect of “off-balance sheet” transactions to exceed 15% of Consolidated Total Assets at such time.

8.11 Financial Covenants.

8.11.1 Minimum Interest Coverage Ratio. The Company shall not permit the Interest Coverage Ratio for any Computation Period to be less than 3.00 to 1.0.

8.11.2 Maximum Leverage Ratio. The Company shall not permit the Leverage Ratio as of the last day of any Computation Period to exceed (a) 3.75 to 1.0 for any Computation Period ending on the second or third fiscal quarter of any fiscal year or (b) 3.00 to 1.0 for any Computation Period ending on the first or fourth fiscal quarter of any fiscal year.

8.11.3 Minimum Net Worth. The Company shall not at any time permit Consolidated Net Worth to be less than the sum of (i) $575,000,000 plus (ii) 50% of Consolidated Net Income earned in each full fiscal quarter ending after the Closing Date (with no deduction for a net loss in any such fiscal quarter) plus (iii) the proceeds of any Equity Issuance after the Closing Date

(net of the direct costs of such issuance, such as sales and underwriter’s commissions and legal, accounting and investment banking fees).

8.12 Guarantors. The Company shall not permit more than 25% of the consolidated assets of the Company and its Domestic Subsidiaries to be owned by, or more than 25% of the consolidated revenues of the Company and its Domestic Subsidiaries during the most recently ended fiscal quarter to be generated by, Domestic Subsidiaries which are not Guarantors.

8.13 Hedging Agreements. The Company shall not, and shall not permit any Specified Subsidiary to, enter into any Hedging Agreement except for Hedging Agreements which hedge against bona fide business risks relating to interest rates, currency exchange rates or commodity prices (and which are not for speculation).

SECTION 9

EVENTS OF DEFAULT

9.1 Events of Default. Any of the following shall constitute an “Event of Default”:

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

9.1.2 Representation or Warranty. Any representation or warranty by the Company or any Specified Subsidiary made or deemed made herein or in any other Loan Document, or which is contained in any certificate, document or financial or other statement by the Company, any Subsidiary or any Responsible Officer furnished at any time under this Agreement or any other Loan Document, is incorrect in any material respect on or as of the date made or deemed made.

9.1.3 Specific Defaults. The Company fails to perform or observe any term, covenant or agreement (i) contained in Section 8.1 or 8.7 and such failure continues unremedied for five Business Days after a Responsible Officer has knowledge thereof or (ii) contained in subsection 7.3(a), Section 7.12 or in any other provision of Section 8 not referred to above in clause (i).

9.1.4 Other Defaults. The Company fails to perform or observe any other term or covenant contained in this Agreement or any other Loan Document, and such default shall continue unremedied for a period of 30 days after the date upon which written notice thereof is given to the Company by the Administrative Agent or any Bank.

9.1.5 Cross-Default. The Company or any Specified Subsidiary (i) fails to make any payment in respect of any Indebtedness or Contingent Obligation 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 $30,000,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure; or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation referred to in the

preceding clause (i), and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or Contingent Obligation or beneficiary or beneficiaries of such Indebtedness or Contingent Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity, or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded.

9.1.6 Insolvency; Voluntary Proceedings. The Company or any Specified Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of the foregoing.

9.1.7 Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced or filed against the Company or any Specified Subsidiary, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Company’s or any Specified Subsidiary’s properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within 60 days after commencement, filing or levy; (ii) the Company or any Specified Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company or any Material Specified Subsidiary acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its property or business.

9.1.8 ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000; (ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans at any time exceeds $30,000,000; or (iii) the Company or any ERISA Affiliate shall fail 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 $10,000,000.

9.1.9 Monetary Judgments. One or more final judgments, final orders, decrees or arbitration awards is entered against the Company or any Specified Subsidiary involving in the aggregate a liability (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) as to any single or related series of transactions, incidents or conditions, of $30,000,000 or more (determined after allowance for the application of any insurance proceeds to such judgment or order), and the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of 30 days after the entry thereof.

9.1.10 Change of Control. Any Change of Control occurs.

9.1.11 Guarantor Defaults. Any Guarantor fails in any material respect to perform or observe any term, covenant or agreement in the Guaranty; or the Guaranty is for any reason partially (including with respect to future advances) or wholly revoked or invalidated, or otherwise ceases to be in full force and effect, with respect to any Guarantor (other than as a result of a transaction permitted hereunder); or any Guarantor contests in any manner the validity or enforceability of the Guaranty or denies that it has any further liability or obligation thereunder; or any event described at Section 9.1.6 or 9.1.7 occurs with respect to any Guarantor.

9.2 Remedies. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Banks,

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

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

provided that upon the occurrence and during the continuance of any Event of Default specified in Section 9.1.6 or 9.1.7 with respect to the Company, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent or any Bank.

9.3 Rights Not Exclusive. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.

SECTION 10

THE ADMINISTRATIVE AGENT

10.1 Appointment and Authorization of Administrative Agent. Each Bank hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Bank or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “administrative agent” in this Agreement and the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising

under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

10.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.

10.3 Liability of Administrative Agent. None of the Agent-Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (ii) be responsible in any manner to any Bank or Participant for any recital, statement, representation or warranty made by the Company or any Subsidiary or Affiliate of the Company, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of the Company or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Bank or Participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Company or any of the Company’s Subsidiaries or Affiliates.

10.4 Reliance by Administrative Agent.

(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Banks as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Banks (or such greater number of Banks as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Banks.

(b) For purposes of determining compliance with the conditions specified in Section 5.1, each Bank that has executed 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 Bank unless the Administrative Agent shall have received notice from such Bank prior to the proposed Closing Date specifying its objection thereto.

10.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Banks, unless the Administrative Agent shall have received written notice from a Bank or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. The Administrative Agent will notify the Banks of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Banks in accordance with Section 9; provided that unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of the Banks.

10.6 Credit Decision; Disclosure of Information by Administrative Agent. Each Bank acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Company and its Subsidiaries, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Bank as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Bank represents to the Administrative Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Company and its Subsidiaries, and all applicable Bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Company hereunder. Each Bank also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Company. Except for notices, reports and other documents expressly herein required to be furnished to the Banks by the Administrative Agent, the Administrative Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Company which may come into the possession of any of the Agent-Related Persons.

10.7 Indemnification of Administrative Agent. Whether or not the transactions contemplated hereby are consummated, the Banks shall indemnify upon demand the Agent-

Related Persons (to the extent not reimbursed by or on behalf of the Company and without limiting the obligation of the Company to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities; provided that no Bank shall be liable for the payment to the Agent-Related Persons of any portion of such Indemnified Liabilities to the extent determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct; provided that no action taken in accordance with the directions of the Required Banks shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. Without limitation of the foregoing, each Bank shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Company. The undertaking in this Section 10.7 shall survive the payment of all Obligations and the resignation or replacement of the Administrative Agent.

10.8 Administrative Agent in Individual Capacity. Bank of America and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Company and its Subsidiaries and Affiliates as though Bank of America were not the Administrative Agent hereunder and without notice to or consent of the Banks. The Banks acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding the Company or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to its Loan, Bank of America shall have the same rights and powers under this Agreement as any other Bank and may exercise such rights and powers as though it were not the Administrative Agent, and the terms “Bank” and “Banks” include Bank of America in its individual capacity.

10.9 Successor Administrative Agent. The Administrative Agent may, and at the request of the Required Banks shall, resign as Administrative Agent upon 30 days’ notice to the Banks and the Company. If the Administrative Agent resigns under this Agreement, the Required Banks shall appoint from among the Banks a successor administrative agent for the Banks which successor administrative agent shall be approved by the Company at all times other than during the existence of an Event of Default (such approval not to be unreasonably withheld or delayed). If no successor administrative agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Banks and the Company, a successor administrative agent from among the Banks. Upon the acceptance of its appointment as successor administrative agent hereunder, the Person acting as such successor administrative agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor administrative agent and the retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated without any other or further act or deed on the part of such retiring Administrative Agent. After any retiring Administrative Agent’s resignation

hereunder as Administrative Agent, the provisions of this Section 10 and Sections 11.4 and 11.5 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. If no successor administrative agent has accepted appointment as Administrative Agent by the date which is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Banks shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Banks appoint a successor administrative agent as provided for above.

10.10 Tax Forms. (a) (i) Each Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign Bank”) shall deliver to the Administrative Agent and the Company, prior to receipt of any payment subject to withholding under the Code (or upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or any successor thereto (relating to such Foreign Bank and entitling it to an exemption from, or reduction of, withholding tax on all payments to be made to such Foreign Bank by the Company pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Foreign Bank by the Company pursuant to this Agreement) or such other evidence satisfactory to the Company and the Administrative Agent that such Foreign Bank is entitled to an exemption from, or reduction of, U.S. withholding tax, including any exemption pursuant to Section 881(c) of the Code. Thereafter and from time to time, each such Foreign Bank shall (A) promptly submit to the Administrative Agent and the Company such additional duly completed and signed copies of one of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to avoid, or such evidence as is satisfactory to the Company and the Administrative Agent of any available exemption from or reduction of, United States withholding taxes in respect of all payments to be made to such Foreign Bank by the Company pursuant to this Agreement, (B) promptly notify the Administrative Agent and the Company of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (C) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable laws that the Company make any deduction or withholding for taxes from amounts payable to such Foreign Bank.

(ii) Each Foreign Bank, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Bank under any of the Loan Documents (for example, in the case of a typical participation by such Bank), shall deliver to the Administrative Agent and the Company on the date when such Foreign Bank ceases to act for its own account with respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the reasonable determination of the Administrative Agent or the Company, (A) two duly signed completed copies of the forms or statements required to be provided by such Bank as set forth above, to establish the portion of any such sums paid or payable with respect to which such Bank acts for its own account that is not subject to U.S. withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any successor thereto),

together with any information such Bank chooses to transmit with such form, and any other certificate or statement of exemption required under the Code, to establish that such Bank is not acting for its own account with respect to a portion of any such sums payable to such Bank.

(iii) The Company shall not be required to pay any additional amount to any Foreign Bank under Section 4.1 (i) with respect to any Taxes required to be deducted or withheld on the basis of the information, certificates or statements of exemption such Bank transmits with an IRS Form W-8IMY pursuant to this subsection 10.10(a) or (ii) if such Bank shall have failed to satisfy the foregoing provisions of this subsection 10.10(a); provided that if such Bank shall have satisfied the requirement of this subsection 10.10(a) on the date such Bank became a Bank or ceased to act for its own account with respect to any payment under any of the Loan Documents, nothing in this subsection 10.10(a) shall relieve the Company of its obligation to pay any amounts pursuant to Section 4.1 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Bank is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Bank or other Person for the account of which such Bank receives any sums payable under any of the Loan Documents is not subject to withholding or is subject to withholding at a reduced rate.

(iv) The Administrative Agent may, without reduction, withhold any Taxes required to be deducted and withheld from any payment under any of the Loan Documents with respect to which the Company is not required to pay additional amounts under this subsection 10.10(a).

(b) Upon the request of the Administrative Agent, each Bank that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent and the Company two duly signed completed copies of IRS Form W-9. If such Bank fails to deliver such forms, then the Administrative Agent may withhold from any interest payment to such Bank an amount equivalent to the applicable back-up withholding tax imposed by the Code, without reduction.

(c) If any Governmental Authority asserts that the Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of any Bank, such Bank shall indemnify the Administrative Agent therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs) of the Administrative Agent. The obligation of the Banks under this Section shall survive repayment of all Obligations hereunder and the resignation of the Administrative Agent.

10.11 Guaranty Matters. The Administrative Agent shall, and the Banks irrevocably authorize the Administrative Agent to, release any Person which is a Guarantor from its obligations under any Guaranty if such Person ceases to be a Specified Subsidiary as a result of a transaction permitted hereunder (including any release upon the request of the Company so long

as, after giving effect thereto, no Default or Event of Default exists and the Company has provided written confirmation that it will be in compliance with Section 8.12). Upon request by the Administrative Agent at any time, the Required Banks will confirm in writing the Administrative Agent’s authority to release any Person from its obligations under the Guaranty.

10.12 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or similar proceeding relative to the Company, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company) 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 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 Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Banks and the Administrative Agent under Sections 2.5 and 11.4) 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 Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.5 and 11.4.

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

10.13 Syndication Agent. The Syndication Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity. Without limiting the foregoing, the Syndication Agent shall not have or be deemed to have any fiduciary relationship with any Bank. Each Bank acknowledges that it has not relied, and will not rely, on the Syndication Agent in deciding to enter into this Agreement or in taking or not taking action hereunder.

SECTION 11

MISCELLANEOUS

11.1 Amendments and Waivers. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by the Company shall be effective unless the same shall be in writing and signed by the Required Banks (or by the Administrative Agent at the written request of the Required Banks) and the Company and acknowledged by the Administrative Agent, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that (a) no such waiver, amendment, or consent shall, unless in writing and signed by the Company and each Bank affected thereby and acknowledged by the Administrative Agent, (i) postpone or delay any date for any scheduled payment of principal, interest (other than default interest), fees or other amounts due hereunder or under any other Loan Document; or (ii) reduce the principal of, or the rate of interest specified herein on any Loan, or (subject to the proviso in clause (c) below) any fee or other amount payable hereunder or under any other Loan Document; (b) no such waiver or amendment shall, unless in writing and signed by all Banks and the Company and acknowledged by the Administrative Agent, (i) change the percentage of the aggregate unpaid principal amount of the Loans which is required for the Banks or any of them to take any action hereunder; (ii) release any Guarantor (other than to the extent permitted by Section 10.11) or (iii) amend this Section 11.1 or Section 2.7, or any provision herein providing for consent or other action by all Banks; and (c) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent, in addition to the Required Banks or all the Banks, as the case may be, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document.

11.2 Notices.

(a) All notices, requests, consents, approvals, waivers and other communications shall be in writing (including, unless the context expressly otherwise provides, by facsimile transmission, provided that any matter transmitted by the Company by facsimile (i) shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 11.2, and (ii) shall be followed promptly by delivery of a hard copy original thereof) and mailed, faxed or delivered, to the address or facsimile number specified for notices on Schedule 11.2; or, as directed to the Company or the Administrative Agent, to such other address as shall be designated by such party in a written notice to the other parties, and as directed to any other party, at such other address as shall be designated by such party in a written notice to the Company and the Administrative Agent.

(b) All such notices, requests and communications shall, when transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited into the U.S. mail, or if delivered, upon delivery; except that notices pursuant to Section 2 or 10 to the Administrative Agent shall not be effective until actually received by the Administrative Agent.

(c) Any agreement of the Administrative Agent and the Banks herein to receive certain notices by telephone or facsimile is solely for the convenience and at the request of the Company. The Administrative Agent and the Banks shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Company to give such notice and the Administrative Agent and the Banks shall not have any liability to the Company or other Person on account of any action taken or not taken by the Administrative Agent or the Banks in reliance upon such telephonic or facsimile notice. The obligation of the Company to repay the Loans shall not be affected in any way or to any extent by any failure by the Administrative Agent and the Banks to receive written confirmation of any telephonic or facsimile notice or the receipt by the Administrative Agent and the Banks of a confirmation which is at variance with the terms understood by the Administrative Agent and the Banks to be contained in the telephonic or facsimile notice.

11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Bank, 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.

11.4 Costs and Expenses. The Company shall:

(a) whether or not the transactions contemplated hereby are consummated, pay or reimburse the Administrative Agent promptly after demand for all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with the development, preparation, execution and delivery of this Agreement and the other Loan Documents and the syndication, sale and/or assignment by Bank of America and the Arranger of the Loans and interests of Bank of America (and its affiliates) hereunder, together with any amendment, supplement, waiver or modification to (in each case, whether or not consummated) this Agreement, any Loan Document and any other documents prepared in connection herewith or therewith, and the consummation of the transactions contemplated hereby and thereby, including Attorney Costs incurred by the Administrative Agent with respect thereto; and

(b) pay or reimburse the Administrative Agent, the Arranger and each Bank promptly after demand for all reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred by them in connection with the exercise, enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement or any other Loan Document during the existence of any Default or Event of Default or after acceleration of the Loans (including in connection with any “workout” or restructuring regarding the Loans, and including in any Insolvency Proceeding or appellate proceeding).

11.5 Company Indemnification. Whether or not the transactions contemplated hereby are consummated, the Company shall indemnify, defend and hold the Administrative Agent, the Agent-Related Persons, and each Bank and each of its respective officers, directors, employees, agents and attorneys-in-fact (each, an “Indemnified Person”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination,

resignation or replacement of the Administrative Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating to or arising out of this Agreement or any Loan Document, or the transactions contemplated hereby, or any action taken or omitted by any such Indemnified Person under or in connection with any of the foregoing, including with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to or arising out of this Agreement or the Loans or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided that the Company shall have no obligation hereunder to any Indemnified Person with respect to (a) items of the types described in subsection 11.4(a) for which the Company is obligated to indemnify only Bank of America and its affiliates (including the Arranger) or (b) Indemnified Liabilities to the extent resulting from the gross negligence or willful misconduct of such Indemnified Person, from the breach by such Indemnified Person of Section 11.9 or from disputes among the Banks. The agreements in this Section 11.5 shall survive payment of all other Obligations. No Indemnified Person shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnified Person have any liability for any indirect, consequential, special or punitive damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due under this Section 11.5 shall be payable within ten Business Days after demand therefor. The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Bank and the repayment, satisfaction or discharge of all Obligations.

11.6 Payments Set Aside. To the extent that the Company makes a payment to the Administrative Agent or the Banks, or the Administrative Agent or the Banks exercise their right of set-off, and such payment or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each Bank severally agrees to pay to the Administrative Agent upon demand its pro rata share of any amount so recovered from or repaid by the Administrative Agent.

11.7 Severability. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.

11.8 Assignments, Participations, etc.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Bank and no Bank may assign or otherwise transfer any of its

rights or obligations hereunder except (i) to an Eligible 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) pursuant to subsection (e) 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 Indemnified Persons) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Bank may at any time assign to one or more Eligible Assignees all or a portion of its Loan and its other rights and obligations under this Agreement; provided that (i) except in the case of an assignment of all of the assigning Bank’s Loan or in the case of an assignment to a Bank or an Affiliate of a Bank or an Approved Fund (as defined in subsection (f) of this Section) with respect to a Bank, the portion of the Loan subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $10,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (which consents shall not be unreasonably withheld or delayed); (ii) each partial assignment of a Loan shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement; and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Bank under this Agreement, and the assigning Bank thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.1, 4.3, 4.4, 11.4 and 11.5 with respect to facts and circumstances occurring prior to the effective date of such assignment). Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with subsection (d) of this Section.

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

Administrative Agent will provide a copy of the Register to the Company upon the Company’s reasonable request. In addition, at any time that a request for a consent for a material or other substantive change to the Loan Documents is pending, any Bank wishing to consult with other Banks in connection therewith may request and receive from the Administrative Agent a copy of the Register.

(d) Any Bank may at any time, without the consent of, or notice to, the Company or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Bank’s Loan and its other rights and/or obligations under this Agreement; provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the Administrative Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank 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 Bank will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clause (a) of Section 11.1 that directly affects such Participant. Subject to subsection (e) of this Section, the Company agrees that each Participant shall be entitled to the benefits of Sections 4.1, 4.3 and 4.4 to the same extent as if it were a Bank 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 11.10 as though it were a Bank, provided such Participant agrees to be subject to Sections 2.7 and 11.9 as though it were a Bank. A Participant shall not be entitled to receive any greater payment under Section 4.1 or 4.3 than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Bank if it were a Bank shall not be entitled to the benefits of Section 4.1 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 10.10 as though it were a Bank.

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

(f) As used herein, the following terms have the following meanings:

“Eligible Assignee” means (a) a Bank; (b) an Affiliate of a Bank; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, and (ii) unless an Event of Default has occurred and is continuing, the Company (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Company or any of the Company’s Affiliates or Subsidiaries.

“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.

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

11.9 Confidentiality. Each Bank agrees to take and to cause its Affiliates to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company or any Subsidiary, or by the Administrative Agent on the Company’s or such Subsidiary’s behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use or disclose any such information other than in connection with matters directly relating to or in enforcement of this Agreement and the other Loan Documents or in connection with other business now or hereafter existing or contemplated with the Company or any Subsidiary; except to the extent such information (a) was or becomes generally available to the public other than as a result of disclosure by such Bank or an Affiliate thereof, or (b) was or becomes available on a non-confidential basis from a source other than the Company or a Subsidiary, provided that such source is not bound by a confidentiality agreement with the Company known to such Bank; provided that any Bank may disclose such information (i) at the request or pursuant to any requirement of any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners) to which such Bank is subject or in connection with an examination of such Bank by any such authority; (ii) pursuant to subpoena or other court process; (iii) when required to do so in accordance with the provisions of any applicable Requirement of Law; (iv) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Bank or their respective Affiliates may be party; (v) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (vi) to such Bank’s independent auditors and other professional advisors; (vii) to any Participant or Assignee, actual or potential, provided that such Person agrees in writing to keep such information confidential to the same extent required of the Banks hereunder; (viii) as to any Bank or its Affiliate, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company or any Subsidiary is party with such Bank or such Affiliate, and (ix) subject to the restrictions above, to its Affiliates, provided that any such Affiliate agrees in writing to keep such information confidential to the extent required hereunder. Each Bank will, so long as not prohibited from doing so by any Requirement of Law, notify the Company of any request for information of the type referred to in clause (ii), (iii) or (iv) above prior to disclosing such information so that the Company may seek appropriate relief from any applicable court or other Governmental Authority.

11.10 Set-off. In addition to any rights and remedies of the Banks provided by law, if an Event of Default exists or the Loans have been accelerated, each Bank is authorized at any time and from time to time, without prior notice to the Company, any such notice being waived by the Company 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 by, and other indebtedness at any time owing by, such Bank to or for the credit or the account of the Company against any and all Obligations owing to such Bank, now or hereafter existing, irrespective of

whether or not the Administrative Agent or such Bank shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Each Bank agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Bank; provided that the failure to give such notice shall not affect the validity of such set-off and application.

11.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall notify the Administrative Agent and the Company in writing of any changes in the address to which notices to the Bank should be directed, of addresses of any Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such other administrative information as the Administrative Agent shall reasonably request.

11.12 Counterparts. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument.

11.13 No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Company, the Banks, the Administrative Agent and the Agent-Related Persons, and their permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any other Loan Document.

11.14 Governing Law and Jurisdiction.

(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.

11.15 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL

BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 11.15 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

11.16 Entire Agreement. This Agreement, together with the other Loan Documents and any fee letter to which the Company may be a party with the Arranger, the Administrative Agent and/or the Syndication Agent, embodies the entire agreement and understanding among the Company, the Banks and the Administrative Agent, and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.

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

11.18 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Bank shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the unpaid principal of the applicable Loan or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Bank 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.

11.19 USA PATRIOT Act Notice. Each Bank and the Administrative Agent (for itself and not on behalf of any Bank) hereby notifies the Company 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 Company, which information includes the name and address of the Company and other information that will allow such Bank or the Administrative Agent, as applicable, to identify the Company in accordance with the Act.

[Signature pages follow]

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


XXXXXX & XXXXXXXX CORPORATION

By		/s/ Xxxxxx X. Xxxxxx
Name		Xxxxxx X. Xxxxxx
Title		Treasurer

Term Loan Agreement


BANK OF AMERICA, N.A., as Administrative Agent and a Bank

By		/s/ Xxxxxxx X. Xxxxxxxx
Name		Xxxxxxx X. Xxxxxxxx
Title		Senior Vice President

Term Loan Agreement


LASALLE BANK NATIONAL ASSOCIATION, as Syndication Agent and a Bank

By		/s/ Xxxx Xxxxxxx
Name		Xxxx Xxxxxxx
Title		Assistant Vice President

Term Loan Agreement

SCHEDULE 1.1

PRICING SCHEDULE

The Applicable Margin shall be determined from time to time based upon the S&P Rating and the Xxxxx’x Rating as set forth in the table below:


Level	Applicable Margin
I	0.500	%
II	0.750	%
III	1.000	%
IV	1.000	%
V	1.250	%
VI	1.750	%

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

“Level I” shall exist at any time the S&P Rating is BBB+ or better or the Xxxxx’x Rating is Baa1 or better.

“Level II” shall exist at any time, (i) Level I does not apply and (ii) the S&P Rating is BBB or the Xxxxx’x Rating is Baa2.

“Level III” shall exist at any time, (i) Levels I and II do not apply and (ii) the S&P Rating is BBB- and the Xxxxx’x Rating is Baa3.

“Level IV” shall exist at any time, (i) Levels I, II, and III do not apply and (ii) either the S&P Rating is BBB- and the Xxxxx’x Rating is Ba1 or the S&P Rating is BB+ and the Xxxxx’x Rating is Baa3.

“Level V” shall exist at any time, (i) Levels I, II, III and IV do not apply and (ii) the S&P Rating is BB+ or the Xxxxx’x Rating is Ba1.

“Level VI” shall exist at any time none of the other Levels applies.

If there is a split rating (i.e., the Xxxxx’x Rating and the S&P Rating would not result in the same pricing), the Company shall be entitled to the benefit of the higher rating; provided that if there is a differential of two or more levels in the table above, the level immediately below the higher applicable level shall apply. If at any time the Company has no Xxxxx’x Rating or no S&P Rating, then the percentages contained in Level VI shall apply.

1.1-1

SCHEDULE 2.1

LOANS / PERCENTAGES


Bank	Loan		Percentage
Bank of America, N.A.	$	93,750,000	75.00	%
LaSalle Bank National Association	$	31,250,000	25.00	%
TOTAL	$	125,000,000	100	%

2.1-1

SCHEDULE 6.5

LITIGATION

None

SCHEDULE 6.6

ERISA

None

SCHEDULE 6.11

ENVIRONMENTAL MATTERS

None

SCHEDULE 6.13

INTELLECTUAL PROPERTY DISPUTES

None

SCHEDULE 6.14

SUBSIDIARIES AND MINORITY INTERESTS

a) Subsidiaries

Xxxxxx & Xxxxxxxx Corporation Foundation Inc. (Wisconsin)

Xxxxxx & Xxxxxxxx International, Inc. (Wisconsin)

Xxxxxx & Xxxxxxxx International East Asia Inc. (Philippines)

Xxxxxx & Xxxxxxxx International Sales Corp. (U.S. Virgin Islands)

Xxxxxx & Xxxxxxxx Tech, LLC

BSD Inc. (Wisconsin)

Xxxxxx & Xxxxxxxx Austria, GmbH

Xxxxxx & Xxxxxxxx Australia Pty Limited

Xxxxxx & Xxxxxxxx New Zealand Limited

Xxxxxx & Xxxxxxxx Canada Inc.

Xxxxxx & Xxxxxxxx Netherlands B.V.

Xxxxxx & Xxxxxxxx Germany, GmbH

Xxxxxx & Xxxxxxxx U.K. Limited

Xxxxxx & Xxxxxxxx France S.A.R.L.

Xxxxxx & Xxxxxxxx XX (Switzerland)

DUBAI, U.A.E.

B&S Switzerland LRO (Russia)

Xxxxxx & Xxxxxxxx RSA (Pty) Ltd. (South Africa)

Xxxxxx & Xxxxxxxx Sweden XX

Xxxxxx & Xxxxxxxx Iberica, S.L. (Spain)

Xxxxxx & Xxxxxxxx Mexico X.X.xx X.X

Xxxxxx & Xxxxxxxx CZ s.r.o. (Czech)

Xxxxxx & Xxxxxxxx Power Products Group, LLC (Delaware)

Xxxxxx & Xxxxxxxx (Shanghai) International Trading Co., Ltd. (China)

Xxxxxx & Xxxxxxxx (Chongqing) Engine Co., Ltd (China)

Xxxxxx & Xxxxxxxx (Qingpu) Power Products Co., Ltd (China)

Xxxxxx & Xxxxxxxx Japan Yugen Kaisha

Simplicity Manufacturing, Inc. (Delaware)

Xxxxxx & Xxxxxxxx Representacao De Motores E Productos De Forca Do Brasil (Brazil)

Toro Xxxxxx & Xxxxxxxx, LLC (Wisconsin)

Xxxxxx & Xxxxxxxx Italy S.r.l.

b) Material Subsidiaries

Xxxxxx & Xxxxxxxx Power Products Group, LLC (Delaware)

Simplicity Manufacturing, Inc. (Delaware)

c) Equity Investment

Venture Investors of Wisconsin, Inc., a Wisconsin corporation (20.5 Shares)

Daihatsu Motors Co. Ltd. (Japan) (1,000 Shares)

Metal Technologies Holding Company, Inc. (45000 Convertible Class B Preferred Stock)

SCHEDULE 8.1

PERMITTED LIENS

None

SCHEDULE 8.5

PERMITTED SUBSIDIARY INDEBTEDNESS

None

SCHEDULE 8.7

CONTINGENT OBLIGATIONS

1.	Guaranty, dated July 1, 1994, by Xxxxxx & Xxxxxxxx Corporation and Starting Industrial Co., Ltd. In favor of Industrial Bank of Japan, guaranteeing an uncommitted line of credit from the Industrial Bank of Japan to Starting USA Corp. in the principal amount not to exceed $2,000,000.

Xxxxxx & Xxxxxxxx Corporation is a participant guarantor pursuant to an Agreement dated as of January 1, 1999 between the Guarantors to and for the benefit of U.S. Bank Milwaukee, N.A in an amount not to exceed $500,000, of loan to the Metropolitan Milwaukee Association of Commerce, Inc. (the “MMAC”) in the stated principal amount of $14,700,000 to enable the MMAC to purchase a 100% participation interest from the Milwaukee Economic Development Corporation in Nonrecourse Promissory Notes, Series A issued by the Milwaukee Brewers Baseball Club, Limited partnership (the “Club”) under a Trust Indenture dated as of December 31, 1996 by and between the Club and Bank One Trust Co., N.A., as trustee.

Xxxxxx & Xxxxxxxx Corporation is a participant guarantor pursuant to an Agreement made as of October 1, 1998 between the participants and U.S. Bank National Association (the Lender), in an amount not to exceed $1,804,808.36, of a direct pay Letter of Credit in an initial face amount of $17,867,602.74 in favor of U.S. Bank of Milwaukee, National Association in its capacity as trustee for $17,650,000 in principal amount of Development Revenue Bonds, Series 1998 (Library Hill Project), issued by the Redevelopment Authority of the City of Milwaukee.

Guaranty, dated as of May 28, 2004, by Xxxxxx & Xxxxxxxx Power Products Group, LLC in favor of Bank of America, N.A., individually and as administrative agent for the Banks (as defined below), and the Lender Parties (as defined therein), guaranteeing, among other things, the obligations of Xxxxxx and Xxxxxxxx Corporation under that certain Multicurrency Credit Agreement, dated as of May 28, 2004, among Xxxxxx & Xxxxxxxx Corporation, various financial institutions party thereto (the “Banks”), and Bank of America, N.A., as administrative agent for the Banks.

5.	Guaranty, dated July 7, 2004, by Xxxxxx & Xxxxxxxx Power Products Group, LLC and Xxxxxx & Xxxxxxxx Corporation guaranteeing an amount not to exceed JPY 10,000,000 for continued credit extension to Simplicity Manufacturing Co. Ltd. for goods it may order from Ishikawajima Shibaura Machinery Co. Ltd.

6.	Guaranty, dated July 7, 2004, by Xxxxxx & Xxxxxxxx Power Products Group, LLC and Xxxxxx & Xxxxxxxx Corporation guaranteeing an amount not to exceed $3,000,000 USD to issue the loss sensitive insurance program for the benefit of Sentry Insurance.

SCHEDULE 11.2

LENDING OFFICES; ADDRESSES FOR NOTICES

XXXXXX & XXXXXXXX CORPORATION

00000 X. Xxxxx Xxxxxx

Xxxxxxxxx, Xxxxxxxxx 00000

Attn: Xxxxxx X. Xxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

BANK OF AMERICA, N.A., as Administrative Agent and as a Bank

Operations Contact:

Attention: Xxxxx X. Xxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Agency Management Services:

0000 Xxxxxx Xxxxxx, 0^xx Xxxxx

Mail Code CA5-701-05-19

Xxx Xxxxxxxxx, XX 00000

Attention: Xxxxxx X. Xxxxxxxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Credit Contact:

000 Xxxxx XxXxxxx Xxxxxx

Xxxxxxx, XX 00000

Attention: Xxxx Xxxxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

11.2-1

LASALLE BANK NATIONAL ASSOCIATION

Operations Contact:

000 X. Xxxxxxxxx Xxxxxx

#0000

Xxxxxxxxx, XX 00000

Attention: Xxxx Potrykos

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Credit Contact:

000 X. Xxxxxxxxx Xxxxxx

Xxxxx 0000

Xxxxxxxxx, XX 00000

Attention: Xxx Xxxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

11.2-2

EXHIBIT X-0

XXXX XX XXXX


		Xxxxxxx, Xxxxxxxx
$		February 11, 2005

FOR VALUE RECEIVED, XXXXXX & XXXXXXXX CORPORATION, a Wisconsin corporation (the “Company”), promises to pay to (the “Bank”), on or before the dates specified in the Loan Agreement referred to below, Dollars ($ ), and the Company further promises to pay interest on the unpaid principal amount hereof at the rates per annum and on the dates specified in the Loan Agreement. Both principal and interest are payable in lawful money of the United States of America and in immediately available funds to the Administrative Agent.

This Note is one of the Notes referred to in the Term Loan Agreement dated as of February 11, 2005 (as amended or otherwise modified from time to time, the “Loan Agreement”) among the Company, the Bank, the other financial institutions party thereto and Bank of America, N.A., as Administrative Agent, and evidences the Loan made by the Bank thereunder. Reference is made to the Loan Agreement for the terms and conditions applicable to this Note, including the terms under which the maturity of this Note may be accelerated.

Except as permitted by Section 11.8 of the Loan Agreement, this Note may not be assigned by the Bank to any other Person.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


XXXXXX & XXXXXXXX CORPORATION

By:


Name:
Title:

A-1

EXHIBIT B

FORM OF GUARANTY

THIS GUARANTY (this “Guaranty”) dated as of February 11, 2005 is executed in favor of BANK OF AMERICA, N.A. (“Bank of America”), individually and as Administrative Agent (as defined below), and the Lender Parties (as defined below).

W I T N E S S E T H:

WHEREAS, Xxxxxx & Xxxxxxxx Corporation (the “Company”), various financial institutions (the “Banks”) and Bank of America, as administrative agent for the Banks (in such capacity, the “Administrative Agent”), have entered into a Term Loan Agreement dated as of February 11, 2005 (as amended, restated or otherwise modified from time to time, the “Loan Agreement;” capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Loan Agreement); and

WHEREAS, each of the undersigned will benefit from the making of loans pursuant to the Loan Agreement and is willing to guaranty the Liabilities (as defined below) as hereinafter set forth;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned hereto agrees as follows:

Each of the undersigned hereby jointly and severally, unconditionally and irrevocably, as primary obligor and not merely as surety, guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of (a) all obligations of the Company, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, which arise out of or in connection with the Loan Agreement or any other Loan Document, as the same may be amended, modified, extended or renewed from time to time, (b) all obligations of the Company to any Lender Party in connection with any Hedging Agreement and (c) all costs and expenses paid or incurred by the Administrative Agent or any Lender Party in enforcing this Guaranty or any other applicable Loan Document against such undersigned (all such obligations being herein collectively called the “Liabilities”); provided that the liability of each of the undersigned hereunder shall be limited to the maximum amount of the Liabilities which such undersigned may guaranty without rendering this Guaranty void or voidable with respect to such undersigned under any applicable fraudulent conveyance or fraudulent transfer law. For purposes of this Agreement, “Lender Party” means each Bank and any affiliate of a Bank which is a party to a Hedging Agreement with the Company.

Each of the undersigned agrees that, in the event of the occurrence of any Event of Default under Section 9.1.6 or 9.1.7 of the Loan Agreement, and if such event shall occur at a

B-1

time when any of the Liabilities may not then be due and payable, such undersigned will pay to the Administrative Agent for the account of the Lender Parties forthwith the full amount which would be payable hereunder by such undersigned if all Liabilities were then due and payable.

This Guaranty shall in all respects be a continuing, irrevocable, absolute and unconditional guaranty of payment and performance and not only collectibility, and shall remain in full force and effect (notwithstanding, without limitation, the dissolution of any of the undersigned, that at any time or from time to time no Liabilities are outstanding or any other circumstance) until all Liabilities have been paid in full.

The undersigned further agree that if at any time all or any part of any payment theretofore applied by the Administrative Agent or any Lender Party to any of the Liabilities is or must be rescinded or returned by the Administrative Agent or such Lender Party for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the undersigned), such Liabilities shall, for the purposes of this Guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Administrative Agent or such Lender Party, and this Guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Administrative Agent or such Lender Party had not been made.

The Administrative Agent or any Lender Party may, from time to time, at its sole discretion and without notice to the undersigned (or any of them), take any or all of the following actions without affecting the obligations of the undersigned hereunder: (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the undersigned, with respect to any of the Liabilities, (c) extend or renew any of the Liabilities for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any of the undersigned hereunder or any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to the undersigned (or any of them) for payment of any of the Liabilities when due, whether or not the Administrative Agent or such Lender Party shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have proceeded against any other of the undersigned or any other obligor primarily or secondarily obligated with respect to any of the Liabilities.

Any amounts received by the Administrative Agent or any Lender Party from whatever source on account of the Liabilities may be applied by it toward the payment of the Liabilities in accordance with the Loan Agreement; and, notwithstanding any payments made by or for the account of any of the undersigned pursuant to this Guaranty, the undersigned shall not be

B-2

subrogated to any rights of the Administrative Agent or any Lender Party until such time as this Guaranty shall have been terminated as to all of the undersigned and the Administrative Agent and the Lender Party shall have received payment of the full amount of all Liabilities.

The undersigned hereby expressly waive: (a) notice of the acceptance by the Administrative Agent or any Lender Party of this Guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon any Liabilities or any security for or guaranty of any Liabilities.

The creation or existence from time to time of additional Liabilities to the Administrative Agent or any Lender Party or any of them is hereby authorized, without notice to the undersigned (or any of them), and shall in no way affect or impair the rights of the Administrative Agent or any Lender Party or the obligations of the undersigned under this Guaranty.

The Administrative Agent and any Lender Party may from time to time, without notice to the undersigned (or any of them), assign or transfer any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this Guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this Guaranty to the same extent as if such assignee or transferee were a Lender Party.

No delay on the part of the Administrative Agent or any Lender Party in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Administrative Agent or any Lender Party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any provision of this Guaranty be binding upon the Administrative Agent or any Lender Party except as expressly set forth in a writing duly signed and delivered on behalf of the Administrative Agent (or, if at any time there is no Administrative Agent, the Required Banks or, if required pursuant to Section 11.1 of the Loan Agreement, all Banks). No action of the Administrative Agent or any Lender Party permitted hereunder shall in any way affect or impair the rights of the Administrative Agent or any Lender Party or the obligations of the undersigned under this Guaranty. For purposes of this Guaranty, Liabilities shall include all obligations of the Company to the Administrative Agent or any Lender Party arising under or in connection with any Loan Document or any Hedging Agreement with any Lender Party, notwithstanding any right or power of the Company or anyone else to assert any claim or defense as to the invalidity or unenforceability of any obligation, and no such claim or defense shall affect or impair the obligations of the undersigned hereunder.

Pursuant to the Loan Agreement, (a) this Guaranty has been delivered to the Administrative Agent and (b) the Administrative Agent has been authorized to enforce this

B-3

Guaranty on behalf of itself and each of the Lender Parties. All payments by the undersigned pursuant to this Guaranty shall be made to the Administrative Agent for application as set forth in the Loan Agreement or, if there is no Administrative Agent, to the Lender Parties for their ratable benefit.

This Guaranty shall be binding upon the undersigned and the successors and assigns of the undersigned: and to the extent that the Company or any of the undersigned is either a partnership, corporation, limited liability company or other entity, all references herein to the Company and to the undersigned, respectively, shall be deemed to include any successor or successors, whether immediate or remote, to such entity. The term “undersigned” as used herein shall mean all parties executing this Guaranty and each of them, and all such parties shall be jointly and severally obligated hereunder.

This Guaranty has been delivered at Chicago, Illinois, and shall be construed in accordance with and governed by the internal laws of the State of Illinois. Wherever possible each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

This Guaranty may be executed in any number of counterparts (including via facsimile) and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Guaranty. At any time after the date of this Guaranty, one or more additional Persons may become parties hereto by executing and delivering to the Administrative Agent a counterpart of this Guaranty. Immediately upon such execution and delivery (and without any further action), each such additional Person will become a party to, and will be bound by all of the terms of, this Guaranty.

This Guaranty may be secured by one or more security agreements, pledge agreements, mortgages, deeds of trust or other similar documents.

ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN AN ILLINOIS STATE COURT SITTING IN CHICAGO OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT

X-0

XXXXX XXX XXX XXXXXXXX XXXXXXXX XX XXXXXXXX FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH UNDER ITS NAME IN SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF THE ADMINISTRATIVE AGENT AND EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY, OR ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

B-5

IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as of the day and year first above written.


XXXXXX & XXXXXXXX POWER PRODUCTS GROUP, LLC

By:
Name:
Title:

SIMPLICITY MANUFACTURING, INC.

By:
Name:
Title:

B-6


Signature page for the Guaranty dated as of February 11, 2005 issued by various subsidiaries of Xxxxxx & Xxxxxxxx Corporation (the “Company”) in favor of Bank of America, N.A., as Administrative Agent under the Term Loan Agreement dated as of February 11, 2005 with the Company and various other parties, and the Lender Parties referred to in such Guaranty.

The undersigned is executing a counterpart hereof for purposes of becoming a party hereto:

[NAME OF SUBSIDIARY]

By:


Name:
Title:

X-0

XXXXXXXX X

XX XXXXXXXX

XXXXXXXXX

00000 W, Xxxxx Xxxxxx

Xxxxxxxxx, Xxxxxxxxx 00000

B-8

EXHIBIT C

FORM OF COMPLIANCE CERTIFICATE

Bank of America, N.A., as Administrative Agent

0000 Xxxxxx Xxxxxx, 0^xx Xxxxx

Mail Code: CA5-701-05-19

Xxx Xxxxxxxxx, XX 00000

Ladies and Gentlemen:

This certificate is furnished to you by Xxxxxx & Xxxxxxxx Corporation (the “Company”), pursuant to Section 7.2(b) of the Term Loan Agreement dated as of February 11, 2005 among the Company, the financial institutions party thereto (the “Banks”) and Bank of America, N.A., as administrative agent for the Banks (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), concurrently with the delivery of the financial statements required pursuant to Section 7.1 of the Loan Agreement. Capitalized terms used but not otherwise defined herein have the respective meanings given to them in the Loan Agreement.

The Company hereby certifies to you that:

(a) no Default or Event of Default has occurred and is continuing, except as described in Attachment 1 hereto;

(b) the financial data and computations set forth in Schedule 1 below, evidencing compliance with the covenants set forth in Sections 8.1(p), 8.2(g), 8.4, 8.5(e), 8.7(d), 8.9 and 8.11 of the Loan Agreement, are true and correct as of , ¹ (the “Computation Date”); and

(c) if the financial statements of the Company being concurrently delivered were not prepared in accordance with GAAP (subject to ordinary, good faith year-end adjustments and the absence of footnotes with respect to quarterly financial statements), Attachment 2 hereto sets forth any derivations required to conform the relevant data in such financial statements to the computations set forth below.

¹	The last day of the accounting period for which financial statements are being concurrently delivered.

C-1

The foregoing certifications, together with the computations set forth in Schedule 1 hereto and the financial statements delivered with this Compliance Certificate in support hereof, are made and delivered as of this day of , .


XXXXXX & XXXXXXXX CORPORATION

By:
Name:
Its:		²

²	To be executed by a Responsible Officer.

C-2

SCHEDULE 1

Computations



Section 8.1(p) – Liens

(a)	Current amount of miscellaneous obligations secured by Liens	$

(b)	Maximum amount of miscellaneous obligations secured by Liens	$	35,000,000

(c)	Clause (a) is less than clause (b) and Section 8.1(p) is satisfied		yes no

Section 8.2(g) – Disposition of Assets

(a)	Aggregate Dollar value of Dispositions of assets by the Company and its Subsidiaries during the current fiscal year of the Company	$

(b)	Maximum amount of Dispositions permitted during the current fiscal year of the Company (an amount equal to 15% of Consolidated Total Assets, as of the beginning of the current fiscal year of the Company)	$

(c)	Clause (a) is less than clause (b) and Section 8.2(g)(x) is satisfied		yes no

(d)	Aggregate Dollar value of Dispositions of assets since the Closing Date.	$

(e)	Maximum amount of Dispositions permitted during the term of the Loan Agreement (an amount equal to 35% of Consolidated Total Assets as of the fiscal quarter most recently ended prior to the Closing Date)	$

(f)	Clause (d) is less than clause (e) and Section 8.2(g)(y) is satisfied		yes no

C-3


Section 8.4 – Hostile Acquisitions; Foreign Investments

(a)	Aggregate consideration (excluding stock of the Company) paid by the Company and its Subsidiaries for acquisitions of Foreign Persons, plus the aggregate amount of advances, loans and capital contributions to, or other investments in Foreign Persons	$

(b)	Maximum permitted amount of consideration and investments described in clause (a)	$	250,000,000

(c)	Clause (a) is less than clause (b) and Section 8.4 is satisfied		yes no

Section 8.5(e) – Subsidiary Indebtedness

(a)	Current aggregate outstanding amount of other Indebtedness	$

(b)	Maximum aggregate outstanding amount of other Indebtedness (limited to 10% of Consolidated Net Worth as of the last day of most recently ended fiscal quarter)		yes no

(c)	Clause (a) is less than clause (b) and Section 8.5(e) is satisfied		yes no

Section 8.7(d) – Contingent Obligations

(a)	Aggregate amount of other Contingent Obligations outstanding as of the date of determination	$

(b)	Maximum amount of Contingent Obligations permitted to be outstanding at any time	$	35,000,000

(c)	Clause (a) is less than clause (b) and Section 8.7(d) is satisfied		yes no

Section 8.9 – Dividends and Stock Repurchases

(a)	Aggregate amount of cash dividends declared or paid in any fiscal year	$

(b)	Maximum permitted aggregate amount of cash dividends declared or paid in any fiscal year of the Company

	(i) Specified Amount	$	50,000,000

C-4


		(ii) Increased number of shares due to “Share Increase Event”		__________

		(iii) Total number of shares outstanding immediately prior to Share Increase Event		__________

		(iv) (ii) divided by (iii)		__________

		(v) (iv) multiplied by (i)	$

		(vi) Carryover of unused Specified Amount from prior fiscal year	$

		(vii) Revised Specified Amount sum of (i), (v) and (vi)	$

	(c)	Clause(a) is less than clause (b)(vii) and Section 8.9 is satisfied		yes no

Section 8.11 – Financial Covenants

1.	Minimum Interest Coverage Ratio

	(a)	EBITDA for Computation Period ending on the date of determination	$

	(b)	Consolidated Interest Expense for Computation Period ending on the date of determination	$

	(c)	Ratio of (a) to (b)		:1.0

	(d)	Minimum Interest Coverage Ratio at any time not to exceed		3.00:1.0

	(e)	Clause (c) is greater than clause (d) and Section 8.11(a) is satisfied		yes no

2.	Maximum Leverage Ratio

	(a)	Total Funded Debt as of the last day of Computation Period ending on the date of determination	$

	(b)	EBITDA for Computation Period ending on the date of determination	$

	(c)	Ratio of (a) to (b)		%

	(d)	Maximum Leverage Ratio at any time not to exceed [Insert (x) 3.75:1.0 in each Compliance Certificate for Computation Period ending on second or third fiscal quarter and (y) 3.00:1.0 in each Compliance		%

C-5


		Certificate for Computation Periods ending on first or fourth fiscal quarter]

	(e)	Clause (c) is less than clause (d) and Section 8.11(b) is satisfied			yes no

3.	Minimum Net Worth

	(a)	Consolidated Net Worth		$

	(b)	(i)	Initial Consolidated Net Worth	$	575,000,000

		(ii)	50% of Consolidated Net Income for each full fiscal quarter ending after the Closing Date (no deduction for a net loss in any fiscal quarter)	$

		(iii)	net proceeds from any Equity Issuance after the Closing Date	$

		(iv)	sum of clauses (a), (b)(i), (b)(ii) and (b)(iii)	$

	(c)	Clause (a) is greater than clause (b)(iv) and Section 8.11(c) is satisfied			yes no

C-6

ATTACHMENT 1

DESCRIPTION OF ANY DEFAULTS OR EVENTS OF DEFAULT

C-7

ATTACHMENT 2

DERIVATIONS REQUIRED TO CONFORM RELEVANT DATA IF

FINANCIAL STATEMENTS WERE NOT PREPARED IN ACCORDANCE WITH GAAP

C-8

EXHIBIT D-1

FORM OF LEGAL OPINION OF COUNSEL TO THE COMPANY

[attached]

D-1

EXHIBIT D-2

FORM OF LEGAL OPINION OF GENERAL COUNSEL OF THE COMPANY

[attached]

D-2

EXHIBIT E

FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT

This Assignment and Acceptance Agreement (this “Assignment Agreement”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “Loan 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 Agreement as if set forth herein in full.

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


1.	Assignor:	____________________

2.	Assignee:	____________________ [and is an Affiliate of [identify Bank]]

3.	Borrower:	Xxxxxx & Xxxxxxxx Corporation

4.	Agent:	Bank of America, N.A., as the administrative agent under the Loan Agreement

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5.	Loan Agreement:	The Term Loan Agreement dated as of February 11, 2005 among Xxxxxx & Xxxxxxxx Corporation, the Banks parties thereto and Bank of America, N.A., as Administrative Agent

6.	Assigned Interest:

Aggregate Principal Amount of

outstanding Loans of all Banks

Principal Amount

of Loan Assigned

Percentage of

Loans Assigned



[7.	Trade Date:	_______________________________]

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

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


ASSIGNOR [NAME OF ASSIGNOR]

By:
		Title:

ASSIGNEE [NAME OF ASSIGNEE]

By:
		Title:

Consented to and Accepted:


BANK OF AMERICA, N.A., as Administrative Agent

By:
		Title:

[Consented to:

XXXXXX & XXXXXXXX CORPORATION

By:
		Title:

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ANNEX 1 TO ASSIGNMENT AGREEMENT

[ ]

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AGREEMENT

1. Representations and Warranties.

1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment Agreement 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 Loan 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 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 Agreement and to consummate the transactions contemplated hereby and to become a Bank under the Loan Agreement, (ii) it meets all requirements of an Eligible Assignee under the Loan Agreement (subject to receipt of such consents as may be required under the Loan Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Loan Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Bank, (v) as of the date hereof, the Borrower will not be obligated to pay any greater amount under Section 4.1 or 4.3 of the Loan Agreement than the Borrower is obligated to pay to the Assignor under such Sections and (vi) if it is a “foreign corporation, partnership or trust” within the meaning of the Code, (A) the Assignee will be in compliance with all applicable provisions of Section 10.10 of the Loan Agreement on or prior to the Effective Date and (B) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Bank, 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 Bank.

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2. Payments. From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.

3. General Provisions. This Assignment Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment Agreement 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 Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment Agreement. This Assignment Agreement shall be governed by, and construed in accordance with, the law of the State of Illinois.

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TERM LOAN AGREEMENT dated as of February 11, 2005 among BRIGGS & STRATTON CORPORATION, THE FINANCIAL INSTITUTIONS PARTY HERETO, LASALLE BANK NATIONAL ASSOCIATION, as Syndication Agent, and BANK OF AMERICA, N.A., as Administrative Agent BANC OF AMERICA...

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