600,000,000 364-DAY CREDIT AGREEMENT

Exhibit 10.2


Execution Version

$600,000,000



364-DAY
CREDIT AGREEMENT



dated as of
April 29, 2009



H J. HEINZ COMPANY
and
H.J. HEINZ FINANCE COMPANY,
Borrowers


and


JPMORGAN CHASE BANK, N.A.
Administrative Agent


______________________________________________________________

J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
Joint Lead Arrangers and
Joint Bookrunners


BANK OF AMERICA, N.A.
Syndication Agent

BNP PARIBAS
HSBC BANK USA N.A.
INTESA SANPAOLO S.P.A.
PNC BANK, NATIONAL ASSOCIATION
BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
UBS LOAN FINANCE LLC
Documentation Agents

 

Table of Contents

		Page
Article 1 Definitions
Section 1.01	Definitions	1
Section 1.02	Accounting Terms and Determinations	10
Section 1.03	Types of Borrowings	10
Article 2 The Credits
Section 2.01	Commitments to Lend	11
Section 2.02	Notice of Committed Borrowing	11
Section 2.03	Competitive Bid Borrowings	11
Section 2.04	Notice to Banks; Funding of Loans	15
Section 2.05	Registry; Notes	16
Section 2.06	Maturity of Loans	17
Section 2.07	Interest Rates	17
Section 2.08	Commitment Fee	20
Section 2.09	Optional Termination or Reduction of Commitments	20
Section 2.10	Method of Electing Interest Rates	20
Section 2.11	Optional Prepayments	21
Section 2.12	General Provisions as to Payments	22
Section 2.13	Funding Losses	23
Section 2.14	Computation of Interest and Fees	23
Section 2.15	Regulation D Compensation	24
Section 2.16	Change of Control	24
Article 3 Conditions
Section 3.01	Effectiveness	25
Section 3.02	Borrowings	26
Article 4 Representations And Warranties
Section 4.01	Corporate Existence and Power	26
Section 4.02	Corporate and Governmental Authorization; No Contravention	27
Section 4.03	Binding Effect	27
Section 4.04	Financial Information	27
Section 4.05	Litigation	28

Section 4.06	Disclosure	28
Section 4.07	Investment Company Act.	28
Article 5 Covenants
Section 5.01	Information	28
Section 5.02	Conduct of Business and Maintenance of Existence	29
Section 5.03	Insurance	29
Section 5.04	Inspection of Property; Books and Records; Discussions	30
Section 5.05	Compliance with Laws	30
Section 5.06	Negative Pledge	30
Section 5.07	Consolidations, Merger and Sales of Assets	33
Section 5.08	Leverage Ratio	33
Section 5.09	Use of Proceeds	33
Article 6 Defaults
Section 6.01	Events of Default	33
Section 6.02	Notice of Default	35
Article 7 The Administrative Agent
Section 7.01	Appointment and Authorization	35
Section 7.02	Administrative Agent and Affiliates	36
Section 7.03	Action by Administrative Agent	36
Section 7.04	Consultation with Experts	36
Section 7.05	Liability of Administrative Agent	36
Section 7.06	Indemnification	36
Section 7.07	Credit Decision	37
Section 7.08	Successor Administrative Agent	37
Section 7.09	Administrative Agent’s Fee	37
Section 7.10	Other Agents	37
Article 8 Change in Circumstances
Section 8.01	Inability to Determine Interest Rate	38
Section 8.02	Illegality	38
Section 8.03	Increased Cost and Reduced Return	39
Section 8.04	Taxes	40
Section 8.05	Base Rate Loans Substituted for Affected Fixed Rate Loans	42
Section 8.06	Termination or Substitution of Banks	42
Section 8.07	Defaulting Banks	43

Article 9 Miscellaneous
Section 9.01	Notices	44
Section 9.02	No Waivers	45
Section 9.03	Expenses; Indemnification	45
Section 9.04	Sharing	45
Section 9.05	Amendments and Waivers	46
Section 9.06	Successors and Assigns	46
Section 9.07	Collateral	48
Section 9.08	Governing Law	48
Section 9.09	Counterparts; Integration	48
Section 9.10	USA Patriot Act	48
Section 9.11	Joint and Several Obligations	48

Pricing Schedule

Commitment Schedule

Exhibit A –	Note
Exhibit B –	Competitive Bid Quote Request
Exhibit C –	Invitation for Competitive Bid Quotes
Exhibit D –	Competitive Bid Quote
Exhibit E –	Opinion of Counsel for the Company
Exhibit F –	Opinion of Special Counsel for the Company
Exhibit G –	Assignment and Assumption Agreement

364-DAY CREDIT AGREEMENT

364-DAY CREDIT AGREEMENT dated as of April 29, 2009 (the “ Agreement ”) among H.J. HEINZ COMPANY, H.J. HEINZ FINANCE COMPANY, the BANKS listed on the signature pages hereof and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

WHEREAS, the Company, Heinz Finance, the banks parties thereto and JPMorgan Chase Bank, N.A., as administrative agent, entered into an Amended and Restated Five-Year Credit Agreement, dated as of August 4, 2004 (the “ Existing Agreement ”);

WHEREAS, the Existing Agreement and the commitments thereunder shall terminate on August 4, 2009 and the parties hereto desire to refinance or replace the commitments thereunder in accordance with the terms and conditions of this Agreement;

NOW, THEREFORE, the parties hereto agree as follows:

Article 1  
DEFINITIONS

Section 1.01   Definitions .  The following terms, as used herein, have the following meanings:

“ Absolute Rate Auction ” means a solicitation of Competitive Bid Quotes setting forth Competitive Bid Absolute Rates pursuant to Section 2.03.

“ Administrative Questionnaire ” means, with respect to each Bank, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent (with a copy to the Company) duly completed by such Bank.

“ Administrative Agent ” means JPMorgan Chase Bank, N.A. in its capacity as Administrative Agent for the Banks hereunder, and its successors in such capacity.

“ Affiliate ” means, with reference to any Bank, the Parent of such Bank and any majority-owned subsidiary of such Bank or its Parent.

“ Agents ” means the Administrative Agent, the Documentation Agents and the Syndication Agent.

“ Applicable Lending Office ” means, with respect to any Bank, (i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its Competitive Bid Loans, its Competitive Bid Lending Office.

 “ Assignee ” has the meaning set forth in Section 9.06(c).

“ Bank ” means each bank listed on the signature pages hereof, each Person which becomes a Bank pursuant to Section 8.06 or 9.06(c), and their respective successors.

“ Base Rate ” means for any day, a rate per annum equal to the highest of (i) the Prime Rate for such day, (ii) the sum of ½ of 1% plus the Federal Funds Rate for such day and (iii) the London Interbank Offered Rate for a Euro-Dollar Loan with a one month Interest Period on such day, or if such day is not a Euro-Dollar Business Day, the immediately preceding Euro-Dollar Business Day, plus 1.0%.

“ Base Rate Loan ” means (i) a Committed Loan which bears interest at the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Interest Rate Election or the provisions of Article 8 or (ii) an overdue amount which was a Base Rate Loan immediately before it became overdue.

“ Borrowers ” means the Company and Heinz Finance and “ Borrower ” means either of them, as the context may require.

“ Borrowing ” has the meaning set forth in Section 1.03.

“ Commitment ” means (i) with respect to each Bank listed on the Commitment Schedule, the amount set forth opposite such Bank’s name on the Commitment Schedule, (ii) with respect to each additional bank which becomes a Bank pursuant to Section 8.06, the amount of the Commitment thereby assumed by it or (iii) with respect to any Assignee, the amount of the transferor Bank’s Commitment assigned to such Assignee pursuant to Section 6.06, in each case as such amount may be reduced from time to time pursuant to Section 2.09 orSection 6.08 or changed as a result of an assignment pursuant to Section 9.06.

“ Commitment Schedule ” means the Commitment Schedule attached hereto.

“ Committed Loan ” means a loan made by a Bank pursuant to Section 2.01; provided that, if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term “ Committed Loan ” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

“ Company ” means H.J. Heinz Company, a Pennsylvania corporation, and its successors.

“ Company’s 2008 Form 10-K ” means the Company’s Annual Report on Form 10-K for the fiscal year ended April 30, 2008, as filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.

“ Competitive Bid Absolute Rate ” has the meaning set forth in Section 2.03(d).

“ Competitive Bid Absolute Rate Loan ” means a loan made or to be made by a Bank pursuant to an Absolute Rate Auction.

“ Competitive Bid Lending Office ” means, as to each Bank, its Domestic Lending Office or such other office, branch or affiliate of such Bank as it may hereafter designate as its Competitive Bid Lending Office by notice to the Company and the Administrative Agent; provided that any Bank may from time to time by notice to the Company and the Administrative Agent designate separate Competitive Bid Lending Offices for its Competitive Bid LIBOR Loans, on the one hand, and its Competitive Bid Absolute Rate Loans, on the other hand, in which case all references herein to the Competitive Bid Lending Office of such Bank shall be deemed to refer to either or both of such offices, as the context may require.

“ Competitive Bid LIBOR Loan ” means a loan made or to be made by a Bank pursuant to a LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant to Section 8.01).

“ Competitive Bid Loan ” means a Competitive Bid LIBOR Loan or a Competitive Bid Absolute Rate Loan.

“ Competitive Bid Margin ” has the meaning set forth in Section 2.03(d).

“ Competitive Bid Quote ” means an offer by a Bank to make a Competitive Bid Loan in accordance with Section 2.03.

“ Confidential Information Memorandum ” means the Confidential Information Memorandum dated April 6, 2009 relating to the Borrowers and this Agreement and the Three-Year Agreement.

“ Consolidated EBITDA ” for any period means Consolidated Net Income of the Company and its Subsidiaries for such period, excluding, to the extent included in determining such Consolidated Net Income, extraordinary items, non-cash restructuring charges (excluding any accrual of or a reserve for cash payments to be made in any future period, to the extent of such cash payments), losses from asset impairments, gains or losses resulting from the sale of assets not in the ordinary course of business, currency translation gains and losses related to currency remeasurements of indebtedness and unrealized gains or losses resulting from application of FAS No. 133, plus, without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of: (i) net interest expense for such period; (ii) income tax expense for such period; and (iii) depreciation and amortization for such period, all determined on a consolidated basis for each such item in accordance with generally accepted accounting principles.

 “ Consolidated Net Assets ” means total assets after deducting therefrom all current liabilities as set forth on the most recent balance sheet of the Company and its Subsidiaries and computed in accordance with generally accepted accounting principles.

“ Consolidated Net Income ” for any period means the consolidated net income (or loss) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with generally accepted accounting principles; provided that there shall be excluded the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company.

“ Consolidated Total Debt ” means, at any date, the aggregate principal amount of all Debt of the Company and its Subsidiaries at such date and any other liabilities accounted for as “debt”, determined on a consolidated basis in accordance with generally accepted accounting principles, except that Consolidated Total Debt shall not reflect any increase or decrease to Debt or other such liability in accordance with FAS No. 133.

“ Debt ” has the meaning set forth in Section 5.06.

“ Default ” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

“ Defaulting Bank ” means any Bank, as determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans within three Business Days of the date required to be funded by it hereunder, (b) notified the Company or Heinz Finance or the Administrative Agent that it does not intend to comply with its obligations under this Agreement, (c) failed, within three Domestic Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans or (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Domestic Business Days of the date when due, in each case under paragraphs (a) through (d), unless the subject of a good faith dispute.

“ Documentation Agent ” means each of BNP Paribas, HSBC Bank USA N.A., Intesa Sanpaolo S.p.A., PNC Bank, National Association, Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch and UBS Loan Finance LLC, in its capacity as a documentation agent in connection with the credit facility provided under this Agreement.

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

“ Domestic Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

“ Domestic Lending Office ” means, as to each Bank, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Bank may hereafter designate as its Domestic Lending Office by notice to the Company and the Administrative Agent.

“ Effective Date ” means the date this Agreement becomes effective in accordance with Section 3.01.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.

“ Euro-Dollar Business Day ” means any Domestic Business Day on which commercial banks are open for international business (including dealings in Dollar deposits) in London.

“ Euro-Dollar Lending Office ” means, as to each Bank, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Company and the Administrative Agent; provided that any Bank may from time to time by notice to the Company and the Administrative Agent designate separate Euro-Dollar Lending Offices for its Loans in different currencies, in which case all references herein to the Euro-Dollar Lending Office of such Bank shall be deemed to refer to any or all of such offices, as the context may require.

“ Euro-Dollar Loan ” means (i) a Loan which bears interest at a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-Dollar Loan immediately before it became overdue.

“ Euro-Dollar Margin ” has the meaning set forth in Section 2.07(b).

“ Euro-Dollar Rate ” means a rate of interest determined pursuant to Section 2.07(b) on the basis of a London Interbank Offered Rate.

“ Euro-Dollar Reserve Percentage ” has the meaning set forth in Section 2.15.

“ Event of Default ” has the meaning set forth in Section 6.01.

“ Existing Agreement ” has the meaning set forth in the Recitals.

“ Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) 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 Domestic Business Day next succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to JPMorgan Chase Bank, N.A. on such day on such transactions as determined by the Administrative Agent.

“ Financing Documents ” means this Agreement and the Notes.

“ Fixed Rate Loans ” means Euro-Dollar Loans or Competitive Bid Loans (excluding Competitive Bid LIBOR Loans bearing interest at the Base Rate pursuant to Section 8.01) or any combination of the foregoing.

“ Group of Loans ” means at any time a group of Loans consisting of (i) all Committed Loans which are Base Rate Loans at such time or (ii) all Committed Loans which are Fixed Rate Loans of the same type having the same Interest Period at such time; provided that , if a Committed Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant to Section 8.02 or 8.05 such Loan shall be included in the same Group or Groups of Loans from time to time as it would have been in if it had not been so converted or made.

“ Heinz Finance ” means H.J. Heinz Finance Company, a Delaware corporation, and its successors.

“ Indemnitee ” has the meaning set forth in Section 9.03(b).

“ Interest Period ” means: (1) with respect to each Euro-Dollar Loan, a period commencing on the date of borrowing specified in the applicable Notice of Borrowing or on the date specified in the applicable Notice of Interest Rate Election and ending one, two, three or six months thereafter, or such other period as agreed between the applicable Borrower and the Banks, as the relevant Borrower may elect in the applicable notice; provided that:

(a)  any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall, subject to clause (c) below, be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day;

(b)  any Interest Period which begins on the last Euro-Dollar 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, subject to clause (c) below, end on the last Euro-Dollar Business Day of a calendar month; and

(c)  any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date.

(2)       with respect to each Competitive Bid LIBOR Loan, the period commencing on the date of borrowing specified in the applicable Notice of Borrowing and ending such whole number of months thereafter as the relevant Borrower may elect in accordance with Section 2.03; provided that:

(a)  any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall, subject to clause (c) below, end on the next preceding Euro-Dollar Business Day;

(b)  any Interest Period which begins on the last Euro-Dollar 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, subject to clause (c) below, end on the last Euro-Dollar Business Day of a calendar month; and

(c)  any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date.

(3)       with respect to each Competitive Bid Absolute Rate Loan, the period commencing on the date of borrowing specified in the applicable Notice of Borrowing and ending such number of days thereafter (but not less than 7 days) as the relevant Borrower may elect in accordance with Section 2.03; provided that:

(a)  any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall, subject to clause (b) below, be extended to the next succeeding Euro-Dollar Business Day; and

(b)  any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date.

“ Leverage Ratio ” means, at any date of determination, the ratio of (i) Consolidated Total Debt determined as of such date of determination to (ii) Consolidated EBITDA determined for the period of four consecutive fiscal quarters ended on or most recently prior to the date of such determination.

“ LIBOR Auction ” means a solicitation of Competitive Bid Quotes setting forth Competitive Bid Margins based on the London Interbank Offered Rate pursuant to Section 2.03.

“ Loan ” means a Committed Loan or a Competitive Bid Loan and “ Loans ” means Committed Loans or Competitive Bid Loans or any combination of the foregoing.

“ London Interbank Offered Rate ” has the meaning set forth in Section 2.07(b).

“ London Office ” means the office of the Administrative Agent identified on the signature pages hereof as its London office, or such other office of the Administrative Agent as it may specify for such purpose by notice to the other parties hereto.

“ Material Debt ” means Debt (other than the Loans) of the Company or a Material Subsidiary, arising in one or more related or unrelated transactions, in an aggregate principal amount exceeding $100,000,000.

“ Material Subsidiary ” means Heinz Finance or any other Subsidiary having consolidated assets equal to 10% or more of the “ Total Assets ” shown on the Company’s consolidated balance sheet as of the end of its most recently completed fiscal year.

“ Mortgage ” means a mortgage, pledge or lien.

“ New York Office ” means the office of the Administrative Agent identified on the signature pages hereof as its New York office, or such other office of the Administrative Agent as it may specify for such purpose by notice to the other parties hereto.

“ Notes ” means promissory notes of a Borrower, substantially in the form of Exhibit A hereto, evidencing the obligation of such Borrower to repay the Loans, and “ Note ” means any one of such promissory notes (if any) issued hereunder.

“ Notice of Borrowing ” means a Notice of Committed Borrowing (as defined in Section 2.02) or a Notice of Competitive Bid Borrowing (as defined in Section 2.03(f)).

“ Notice of Interest Rate Election ” has the meaning set forth in Section 2.10.

“ Obligations ” has the meaning set forth in Section 9.11.

“ Parent ” means, with respect to any Bank, any Person controlling such Bank.

“ Participant ” has the meaning set forth in Section 9.06(b).

“ Person ” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

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

“ Prime Rate ” means the rate of interest publicly announced by JPMorgan Chase Bank, N.A.  in New York City from time to time as its Prime Rate.

“ Quarterly Date ” means the last Euro-Dollar Business Day of each February, May, August, and November.

“ Reference Banks ” means the principal London offices of JPMorgan Chase Bank, N.A. and Bank of America, N.A., and “ Reference Bank ” means any one of such Reference Banks.

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“ Regulation X ” means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“ Required Banks ” means at any time Banks having more than 50% of the aggregate amount of the Commitments or, if the Commitments shall have been terminated, holding more than 50% of the aggregate unpaid principal amount of the Loans.

“ Screen ” has the meaning set forth in Section 2.07.

“ Subsidiary ” means any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time of determination owned, directly or indirectly, by the Company and/or one or more other Subsidiaries.

“ Syndication Agent ” means Bank of America, N.A., in its capacity as syndication agent in connection with the credit facility provided under this Agreement.

“ Termination Date ” means April 28, 2010 (or if such date is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day).

“ Three-Year Credit Agreement ” means the Credit Agreement dated April 29, 2009 among the Company, Heinz Finance, the bank parties thereto and JPMorgan Chase Bank, N.A., as administrative agent.

“ United States ” means the United States of America, including the States and the District of Columbia, but excluding its territories and possessions.

Section 1.02   Accounting Terms and Determinations .  Unless otherwise specified herein, all terms of an accounting or financial nature shall be construed, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally accepted accounting principles as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Company’s public accountants) with the most recent audited consolidated financial statements of the Company and its Subsidiaries delivered to the Banks.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Debt or other liabilities of the Borrowers or any Subsidiary at “fair value”, as defined therein.  

Section 1.03   Types of Borrowings .  The term “ Borrowing ” denotes the aggregation of Loans of one or more Banks to be made to the same Borrower pursuant to Article 2 on the same date, all of which Loans are of the same type (subject to Article 8) and, except in the case of Base Rate Loans, have the same Interest Period or initial Interest Period.  Borrowings are classified for purposes of this Agreement either by reference to the pricing of Loans comprising such Borrowing (e.g., a “ Euro-Dollar Borrowing ” is a Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions of Article 2 under which participation therein is determined (i.e., a “ Committed Borrowing ” is a Borrowing under Section 2.01 in which all Banks participate in proportion to their Commitments, while a “ Competitive Bid Borrowing ” is a Borrowing under Section 2.03 in which the Bank participants are determined on the basis of their bids in accordance therewith).

ARTICLE 2
THE CREDITS

Section 2.01   Commitments to Lend .  From time to time prior to the Termination Date, each Bank severally agrees, on the terms and conditions set forth in this Agreement, to make Loans to the Borrowers pursuant to this Section from time to time in amounts such that the aggregate principal amount of Committed Loans by such Bank at any one time outstanding shall not exceed the amount of its Commitment.  Each Borrowing under this Section shall be in an aggregate principal amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such Borrowing may be in the aggregate amount available in accordance with Section 3.02(b)) and shall be made from the several Banks ratably in proportion to their respective Commitments.  Within the foregoing limits, the Borrowers may borrow under this Section, prepay Loans to the extent permitted by Section 2.11 and reborrow at any time prior to the Termination Date under this Section.  The Commitments shall terminate at the close of business on the Termination Date.

Section 2.02   Notice of Committed Borrowing .  The relevant Borrower shall give the Administrative Agent notice (a “ Notice of Committed Borrowing ”) at its New York Office not later than 10:30 A.M. (New York City time) on (1) the date of each Borrowing of a Base Rate Loan and (2) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:

           (a)  the date of such Borrowing, which shall be a Domestic Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,

           (b)  the aggregate amount of such Borrowing,

           (c)  whether the Loans comprising such Borrowing are to bear interest initially at the Base Rate or at a Euro-Dollar Rate, and

           (d)  in the case of a Borrowing of a Fixed Rate Loan, the duration of the initial Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.

Section 2.03   Competitive Bid Borrowings .

       (a)  The Competitive Bid Option.  In addition to Committed Loans pursuant to Section 2.01, a Borrower may, as set forth in this Section, request the Banks from time to time prior to the Termination Date to make offers to make Competitive Bid Loans to such Borrower.  The Banks may, but shall have no obligation to, make such offers and the relevant Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section.

       (b)  Competitive Bid Quote Request.  When a Borrower wishes to request offers to make Competitive Bid Loans under this Section, it shall transmit to the Administrative Agent by telex or facsimile transmission or electronic mail a Competitive Bid Quote Request substantially in the form of Exhibit B hereto so as to be received no later than (x) 9:00 A.M. (New York City time) on the third Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y) 10:30 A.M. (New York City time) on the Domestic Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the relevant Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective) specifying:

              (i)    the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute Rate Auction,

              (ii)   the aggregate amount of such Borrowing, which shall be $25,000,000 or a larger multiple of $5,000,000,

              (iii)  the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period, and

              (iv)  whether the Competitive Bid Quotes requested are to set forth a Competitive Bid Margin or a Competitive Bid Absolute Rate.

A Borrower may request offers to make Competitive Bid Loans for more than one Interest Period in a single Competitive Bid Quote Request.  

       (c)  Invitation for Competitive Bid Quotes.  Promptly upon receipt of a Competitive Bid Quote Request, the Administrative Agent shall send to the Banks by telex or facsimile transmission or electronic mail an Invitation for Competitive Bid Quotes substantially in the form of Exhibit C hereto, which shall constitute an invitation by the relevant Borrower to each Bank to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance with this Section.

       (d)  Submission and Contents of Competitive Bid Quotes.   (i)  Each Bank may submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes.  Each Competitive Bid Quote must comply with the requirements of this subsection (d) and must be submitted to the Administrative Agent by telex or facsimile transmission or electronic mail at its offices specified in or pursuant to Section 9.01 not later than (x) 12:30 P.M. (New York City time) on the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the relevant Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective); provided that Competitive Bid Quotes submitted by the Administrative Agent (or any affiliate of the Administrative Agent) in the capacity of a Bank may be submitted, and may only be submitted, if the Administrative Agent or such affiliate notifies the relevant Borrower of the terms of the offer or offers contained therein not later than (x) one hour prior to the deadline for the other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the other Banks, in the case of an Absolute Rate Auction.  Subject to Articles 3 and 6, any Competitive Bid Quote so made shall be irrevocable except with the written consent of the Administrative Agent given on the instructions of the relevant Borrower.

              (ii)  Each Competitive Bid Quote shall be in substantially the form of Exhibit D hereto and shall in any case specify:

                   (A)  the proposed date of Borrowing,

                   (B)  the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Bank may be accepted,

                   (C)  in the case of a LIBOR Auction, the margin above or below the applicable London Interbank Offered Rate (the “ Competitive Bid Margin ”) offered for each such Competitive Bid Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,

                   (D)  in the case of an Absolute Rate Auction, the rate of interest per annum (specified to the nearest 1/10,000th of 1%) (the “ Competitive Bid Absolute Rate ”) offered for each such Competitive Bid Loan, and

                   (E)  the identity of the quoting Bank.

A Competitive Bid Quote may set forth up to five separate offers by the quoting Bank with respect to each Interest Period specified in the related Invitation for Competitive Bid Quotes.

             (iii)  Any Competitive Bid Quote shall be disregarded if it:

                   (A)  is not substantially in conformity with Exhibit D hereto or does not specify all of the information required by subsection (d)(ii);

                   (B)  contains qualifying, conditional or similar language;

                   (C)  proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes; or

                   (D)  arrives after the time set forth in subsection (d)(i).

       (e)  Notice to Borrower.  The Administrative Agent shall promptly, and in any event not less than 30 minutes before the relevant Borrower would be required to give notice pursuant to subsection (f), notify such Borrower of the terms (x) of any Competitive Bid Quote submitted by a Bank that is in accordance with subsection (d) and (y) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Bank with respect to the same Competitive Bid Quote Request.  Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.  The Administrative Agent’s notice to such Borrower shall specify (A) the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, (B) the respective principal amounts and Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be, so offered and (C) if applicable, limitations on the aggregate principal amount of Competitive Bid Loans for which offers in any single Competitive Bid Quote may be accepted.

       (f)  Acceptance and Notice by Borrower.  Not later than (x) 1:30 P.M. (New York City time) on the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:30 A.M. (New York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the relevant Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective), such Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of the offers so notified to it pursuant to subsection (e).  In the case of acceptance, such notice (a “ Notice of Competitive Bid Borrowing ”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted.  Such Borrower may accept any Competitive Bid Quote in whole or in part; provided that:

             (i)    the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request,

             (ii)   the principal amount of each Competitive Bid Borrowing must be $25,000,000 or a larger multiple of $5,000,000,

             (iii)  acceptance of offers may only be made on the basis of ascending Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be, and

             (iv)  such Borrower may not accept any offer that is described in subsection (d)(iii) or that otherwise fails to comply with the requirements of this Agreement.

       (g)  Allocation by Administrative Agent.  If offers are made by two or more Banks with the same Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which such offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Banks as nearly as possible (in multiples of $1,000,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers.  Determinations by the Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error.

Section 2.04   Notice to Banks; Funding of Loans .  

       (a)  Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s share (if any) of such Borrowing and such Notice of Borrowing shall not thereafter be revocable by the relevant Borrower.

       (b)  Each Bank participating therein shall make available its share of such Borrowing not later than 12:00 Noon (New York City time) on the date of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its office specified in or pursuant to Section 9.01; or

Unless the Administrative Agent determines that any applicable condition specified in Article 3 has not been satisfied, the Administrative Agent will make the funds so received from the Banks available to the relevant Borrower at the Administrative Agent’s aforesaid address.

       (c)  Unless the Administrative Agent shall have received notice from a Bank (x) not later than 12:00 Noon (New York City time) on the date of a Borrowing, in the case of Base Rate Loans and (y) at least one Domestic Business Day prior to the date of a Borrowing, in the case of any other Loans, that such Bank will not make available to the Administrative Agent such Bank’s share of such Borrowing, the Administrative Agent may assume that such Bank has made such share available to the Administrative Agent on the date of such Borrowing in accordance with subsection (b) of this Section 2.04 and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower on such date a corresponding amount.  If and to the extent that such Bank shall not have so made such share available to the Administrative Agent, such Bank and the relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate.  If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Loan included in such Borrowing for purposes of this Agreement.

Section 2.05   Registry; Notes .  (a)  The Administrative Agent shall maintain a register (the “ Register ”) on which it will record the Commitment of each Bank, each Loan made by such Bank and each repayment of any Loan made by such Bank.  Any such recordation by the Administrative Agent on the Register shall be prima facie evidence of the facts so recorded.  Failure to make any such recordation, or any error in such recordation, shall not affect the obligations of either Borrower hereunder.

       (b)  Each Borrower hereby agrees that, promptly upon the request of any Bank at any time, the relevant Borrower shall deliver to such Bank a duly executed Note, in substantially the form of Exhibit A hereto, payable to the order of such Bank and representing the obligation of such Borrower to pay the unpaid principal amount of the Loans made to such Borrower by such Bank, with interest as provided herein on the unpaid principal amount from time to time outstanding.

       (c)  Each Bank shall record the date, currency, amount and maturity of each Loan made by it and the date and amount of each payment of principal made by the relevant Borrower with respect thereto, and each Bank receiving a Note pursuant to this Section, if such Bank so elects in connection with any transfer or enforcement of its Note, may endorse on the schedule forming a part thereof appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding; provided that the failure of such Bank to make any such recordation or endorsement or any error in such recordation or endorsement shall not affect the obligations of the relevant Borrower hereunder or under the Notes.  Such Bank is hereby irrevocably authorized by each Borrower so to endorse its Note and to attach to and make a part of its Note a continuation of any such schedule as and when required.

Section 2.06   Maturity of Loans .  (a)  The Committed Loans shall mature, and the principal amount thereof shall be due and payable, together with accrued interest thereon, on the Termination Date.

       (b)  Each Competitive Bid Loan included in any Competitive Bid Borrowing shall mature, and the principal amount thereof shall be due and payable, together with accrued interest thereon, on the last day of the Interest Period applicable to such Borrowing.

Section 2.07   Interest Rates .  (a)  Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made until it becomes due, at a rate per annum equal to the Applicable Margin for Base Rate Loans for such day plus the Base Rate for such day.  Such interest shall be payable quarterly in arrears on each Quarterly Date and, with respect to the principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, on each date a Base Rate Loan is so converted.  Any overdue principal of or interest on any Base Rate Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of 1% plus the rate otherwise applicable to Base Rate Loans for such day.  Any overdue commitment fees payable pursuant to Section 2.08 shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of 1% plus the rate otherwise applicable to Base Rate Loans for such day.

       (b)  Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period applicable thereto, at a rate per annum equal to the sum of the Applicable Margin for Euro-Dollar Loans as applicable to such Euro-Dollar Loan for such day plus the London Interbank Offered Rate applicable to such Interest Period.  Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof.

The “ Applicable Margin ” means (i) for a Euro-Dollar Loan, a rate per annum equal to the Credit Default Swap Spread at the applicable date of determination and (ii) for a Base Rate Loan, the Applicable Margin for Euro-Dollar Loans less 1% per annum, but not less than 0%; provided , that the Applicable Margin for Euro-Dollar Loans, including as used to determine the Applicable Margin for Base Rate Loans, shall be subject to a floor (the “ Rate Floor ”) and a ceiling (the “ Rate Ceiling ”) as provided in the Pricing Schedule.

The “ Credit Default Swap Spread ” means at any determination date the one-year credit default swap mid-rate spread applicable to senior debt of the Company, as of the close of business on the Domestic Business Day immediately preceding such determination date, as reported by Markit Group Limited (or its successor or, if such source is not then publishing such rate, an appropriate page providing such information on Bloomberg or other source agreed by the Borrowers and the Administrative Agent). The Credit Default Swap Spread is determined (i) in the case of Base Rate Loans, on the Effective Date and thereafter on the first Domestic Business Day of each calendar quarter, and (ii) in the case of any Euro-Dollar Loan, (A) on the second Euro-Dollar Business Day before the commencement of the Interest Period applicable to such Loan and (B) in the case of an Interest Period of more than three months duration, the date that is the last Domestic Business Day of each successive three-month period during such Interest Period.

If at any time the Credit Default Swap Spread is unavailable, the Borrowers and the Banks shall negotiate in good faith (for a period of up to thirty days after the Credit Default Swap Spread becomes unavailable (such thirty-day period, the “ Negotiation Period ”)) to agree on an alternative method for establishing the Applicable Margin for Euro-Dollar Loans.  The Applicable Margin for Euro-Dollar Loans at any date of determination thereof which falls during the Negotiation Period shall be based upon the then most recently available quote of the Credit Default Swap Spread (subject in any event to the Rate Ceiling and the Rate Floor).  If no such alternative method is agreed upon during the Negotiation Period, the Applicable Margin for Euro-Dollar Loans at any date of determination subsequent to the end of the Negotiation Period shall be a rate per annum equal to the applicable Rate Ceiling.

The “ London Interbank Offered Rate ” applicable to any Euro-Dollar Loan for any Interest Period means the rate appearing on the Screen at approximately 11:00 A.M., London time, two Euro-Dollar Business Days before the first day of such Interest Period as the rate for deposits in dollars with a maturity comparable to such Interest Period.  If no rate appears on the Screen for dollars and the necessary period, then the “ London Interbank Offered Rate ” with respect to such Euro-Dollar Loan for such Interest Period shall be the rate at which deposits of that amount in dollars with a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 A.M., London time, two Euro-Dollar Business Days before the first day of such Interest Period.

The “ Screen ” means Reuters Screen LIBOR01 Page.  The Administrative Agent may nominate an alternative source of screen rates if these pages are replaced by others which display rates for inter-bank deposits offered by leading banks in London.

       (c)  Any overdue principal of or interest on any Euro-Dollar Loan shall bear interest, payable on demand, for each day from and including the date payment thereof was due to but excluding the date of actual payment, at a rate per annum equal to the sum of 1% plus the higher of (i) the Euro-Dollar Margin for such day plus the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective rates per annum at which one day (or, if such amount due remains unpaid more than three Euro-Dollar Business Days, then for such other period of time not longer than six months as the Administrative Agent may select) deposits in dollars in an amount approximately equal to such overdue payment due to each of the Reference Banks are offered to such Reference Bank in the London interbank market for the applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a) or (b) of Section 8.01 shall exist, the rate applicable to Base Rate Loans for such day) and (ii) the sum of the Euro-Dollar Margin for such day plus the London Interbank Offered Rate applicable to such Loan at the date such payment was due.

       (d)  Subject to Section 8.01, each Competitive Bid LIBOR Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum of the London Interbank Offered Rate for such Interest Period (determined in accordance with Section 2.07(b) as if the related Competitive Bid LIBOR Borrowing were a Committed Euro-Dollar Borrowing) plus the Competitive Bid Margin quoted by the Bank making such Loan in accordance with Section 2.03.  Each Competitive Bid Absolute Rate Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Competitive Bid Absolute Rate quoted by the Bank making such Loan in accordance with Section 2.03.  Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof.  Any overdue principal of or interest on any Competitive Bid Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of 1% plus the Base Rate for such day.

       (e)  The Administrative Agent shall determine each interest rate applicable to the Loans hereunder.  The Administrative Agent shall give prompt notice to the relevant Borrower and the participating Banks of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.

       (f)  Each Reference Bank agrees to use its best efforts to furnish quotations to the Administrative Agent as contemplated by this Section.  If any Reference Bank does not furnish a timely quotation, the Administrative Agent shall determine the relevant interest rate on the basis of the quotation or quotations furnished by the remaining Reference Bank or Banks or, if none of such quotations is available on a timely basis, the provisions of Section 8.01 shall apply.

Section 2.08   Commitment Fee .  The Borrowers shall be jointly and severally obligated to pay to the Administrative Agent for the account of the Banks ratably a commitment fee in Dollars at the Commitment Fee Rate.  Such commitment fee shall accrue from and including the Effective Date to but excluding the Termination Date (or earlier date of termination of the Commitments in their entirety), on the daily average aggregate unused amount of the Commitments.  For purposes of calculating the commitment fees, outstanding Competitive Bid Loans shall be deemed to be zero and any Defaulting Bank shall be subject to the provisions of Section 8.07.  Accrued fees under this Section shall be payable quarterly on each Quarterly Date and upon the date of termination of the Commitments in their entirety.

“ Commitment Fee Rate ” means a rate per annum determined in accordance with the Pricing Schedule.

Section 2.09   Optional Termination or Reduction of Commitments .  The Company may (i) terminate the Commitments at any time, if no Loans are outstanding at such time or (ii) upon at least three Domestic Business Days’ notice to the Administrative Agent, ratably reduce from time to time by an aggregate amount of $50,000,000 or any larger multiple thereof, the aggregate amount of the Commitments in excess of the aggregate outstanding principal amount of the Loans.  

Section 2.10   Method of Electing Interest Rates .  (a)  The Loans included in each Committed Borrowing shall bear interest initially at the type of rate specified by the relevant Borrower in the applicable Notice of Committed Borrowing.  Thereafter, such Borrower may from time to time elect to change or continue the type of interest rate borne by each Group of Loans (subject in each case to the provisions of Article 8) as follows:

               (i)  if such Loans are Base Rate Loans, the Borrower may elect to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day; and

              (ii)  if such Loans are Euro-Dollar Loans, the Borrower may elect to convert such Loans to Base Rate Loans or elect to continue such Loans as Euro-Dollar Loans for an additional Interest Period, in each case effective on the last day of the then current Interest Period applicable to such Loans.

Each such election shall be made by delivering a notice (a “ Notice of Interest Rate Election ”) to the Administrative Agent at least three Euro-Dollar Business Days before the conversion or continuation selected in such notice is to be effective.  A Notice of Interest Rate Election may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Group of Loans; provided that (i) such portion is allocated ratably among the Loans comprising such Group and (ii) the portion to which such Notice applies, and the remaining portion to which it does not apply, are each $25,000,000 or any larger multiple of $5,000,000.

       (b)  Each Notice of Interest Rate Election shall specify:

             (i)    the Group of Loans (or portion thereof) to which such notice applies;

             (ii)   the date on which the conversion or continuation selected in such notice is to be effective, which shall comply with the applicable clause of subsection (a) above;

             (iii)  if the Loans comprising such Group are to be converted, the new type of Loans and, if such new Loans are Fixed Rate Loans, the duration of the initial Interest Period applicable thereto; and

             (iv)  if such Loans are to be continued as Euro-Dollar Loans for an additional Interest Period, the duration of such additional Interest Period.

Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of Interest Period.

       (c)  Upon receipt of a Notice of Interest Rate Election from the relevant Borrower pursuant to subsection (a) above, the Administrative Agent shall promptly notify each Bank of the contents thereof and such notice shall not thereafter be revocable by such Borrower.  If such Borrower fails to deliver a timely Notice of Interest Rate Election to the Administrative Agent for any Group of Fixed Rate Loans, such Loans shall be converted into Base Rate Loans on the last day of the then current Interest Period applicable thereto.

Section 2.11   Optional Prepayments .  (a)  Any Borrower may, upon at least one Domestic Business Day’s notice to the Administrative Agent, prepay, without premium, any Group of Base Rate Loans (or any Competitive Bid Borrowing bearing interest at the Base Rate pursuant to Section 8.01), in whole at any time, or from time to time in part in amounts aggregating $25,000,000 or any larger multiple of $5,000,000, by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment.  Each such optional prepayment shall be applied to prepay ratably the Loans of the several Banks included in such Group or Borrowing.

       (b)  Subject to Section 2.13, any Borrower may upon at least three Euro-Dollar Business Days’ notice to the Administrative Agent, in the case of a Group of Euro-Dollar Loans, prepay, without premium, the Loans comprising such a Group, in whole at any time, or from time to time in part in amounts aggregating $25,000,000 or any larger multiple of $5,000,000 by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment.  Each such optional prepayment shall be applied to prepay ratably the Loans of the several Banks included in such Group.

       (c)  Except as provided in subsection (a) above and in Section 8.06 a Borrower may not prepay all or any portion of the principal amount of any Competitive Bid Loan prior to the maturity thereof.

       (d)  Upon receipt of a notice of prepayment pursuant to this Section, the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share (if any) of such prepayment and such notice shall not thereafter be revocable by the relevant Borrower.

Section 2.12   General Provisions as to Payments . (a)  Each Borrower shall make each payment of principal of, and interest on, Loans and of fees hereunder, not later than 12:00 Noon (New York City time) on the date when due, without setoff, counterclaim or deduction, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address referred to in Section 9.01.  The Administrative Agent will promptly distribute to each Bank its ratable share of each such payment received by the Administrative Agent for the account of the Banks.  Whenever any payment of principal of, or interest on, the Base Rate Loans or of fees shall be due on a day which is not a Domestic Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day.  Whenever any payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case the date for payment thereof shall be the next preceding Euro-Dollar Business Day.  Whenever any payment of principal of, or interest on, the Competitive Bid Loans shall be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding Euro-Dollar Business Day.  If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time.

       (b)  Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Banks hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due such Bank.  If and to the extent that a Borrower shall not have so made such payment, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.  

Section 2.13   Funding Losses .  If a Borrower makes any payment of principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last day of an Interest Period applicable thereto, or the last day of an applicable period fixed pursuant to Section 2.07(c), or if a Borrower fails to borrow or prepay any Fixed Rate Loans after notice has been given to any Bank in accordance with Section 2.04(a) or 2.11(d), such Borrower shall reimburse each Bank within 30 days after demand for any resulting loss or expense incurred by it (or by an existing or prospective Participant in the related Loan), including (without limitation) any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin for the period after any such payment or conversion or failure to borrow or prepay, provided that such Bank shall have delivered to the relevant Borrower a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error.

Section 2.14   Computation of Interest and Fees .  Interest based on the Prime Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day).  All other interest and fees shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day).

Section 2.15   Regulation D Compensation .  If and so long as a reserve requirement of the type described in the definition of “ Euro-Dollar Reserve Percentage ” is prescribed by the Board of Governors of the Federal Reserve System (or any successor), each Bank subject to such requirement may require the Borrower to pay, contemporaneously with each payment of interest on each of such Bank’s Euro-Dollar Loans, additional interest on such Euro-Dollar Loan (but without duplication of any Euro-Dollar Reserve Percentage taken into account in the determination of the interest rate under Section 2.07(c)) at a rate per annum determined by such Bank up to but not exceeding the excess of (i) (A) the applicable London Interbank Offered Rate divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank Offered Rate.  Any Bank wishing to require payment of such additional interest (x) shall so notify the Company and the Administrative Agent, in which case such additional interest on the Euro-Dollar Loans of such Bank shall be payable to such Bank at the place indicated in such notice with respect to each Interest Period commencing at least three Euro-Dollar Business Days after the giving of such notice, and (y) shall notify the Company at least five Euro-Dollar Business Days prior to each date on which interest is payable on the Euro-Dollar Loans of the amount then due it under this Section.

“ Euro-Dollar Reserve Percentage ” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion dollars in respect of “ Eurocurrency liabilities ” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to United States residents).

Section 2.16   Change of Control .  If a Change of Control shall occur the Administrative Agent shall (i) if requested by Banks having more than 50% in aggregate amount of the Commitments, by notice to the Company terminate the Commitments and they shall thereupon terminate, and (ii) if requested by Banks holding more than 50% in aggregate principal amount of the Loans, by notice to the Company declare the Loans (together with accrued interest thereon) to be, and the Loans shall thereupon become, immediately due and payable.

A “ Change of Control ” shall occur if any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of a majority of the outstanding shares of common stock of the Company; or, during any period of 12 consecutive calendar months, individuals who constitute the Board of Directors of the Company on the first day of such period (the “ Incumbent Board of the Company ”) shall cease to constitute a majority thereof; provided that any person becoming a director subsequent to the date of this Agreement whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least three-fourths of the directors comprising the Incumbent Board of the Company (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall be, for the purpose of this clause, considered as though such person were a member of the Incumbent Board of the Company.

ARTICLE 3
CONDITIONS

Section 3.01   Effectiveness .  This Agreement shall become effective on the date that each of the following conditions shall have been satisfied (or waived in accordance with Section 9.05):

       (a)  receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party);

       (b)  receipt by the Administrative Agent of an opinion of the  Executive Vice President & General Counsel of the Company, substantially in the form of Exhibit E hereto and covering such additional matters relating to the transactions contemplated hereby as the Required Banks may reasonably request;

       (c)  receipt by the Administrative Agent of an opinion of Davis Polk & Wardwell, special counsel for the Company, substantially in the form of Exhibit F hereto and covering such additional matters relating to the transactions contemplated hereby as the Required Banks may reasonably request;

       (d)  receipt by the Administrative Agent of all documents the Administrative Agent may reasonably request relating to the existence of each of the Borrowers, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;

       (e)  receipt by the Administrative Agent for the account of each Bank a front-end fee in the amount heretofore mutually agreed; and

       (f)  receipt by the Administrative Agent of evidence satisfactory to it of the payment of all principal of and interest on any loans outstanding under, and of all other amounts payable under, the Existing Agreement.

The Banks that are parties to the Existing Agreement, comprising the “ Required Banks ” as defined in such agreement, and the Company agree that the commitments under the Existing Agreement shall terminate in their entirety simultaneously with and subject to the effectiveness of this Agreement, without notice or further action by any party under the Existing Agreement, and that the Company shall be obligated to pay the accrued facility fees thereunder to but excluding the date of such effectiveness.  The Administrative Agent shall promptly notify the Company and the Banks of the Effective Date, and such notice shall be conclusive and binding on all parties hereto.

Section 3.02   Borrowings .  The obligation of any Bank to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:

       (a)  receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.02 or 2.03, as the case may be;

       (b)  the fact that, immediately after such Borrowing, the aggregate outstanding principal amount of the Loans will not exceed the aggregate amount of the Commitments;

       (c)  the fact that, immediately before and immediately after such Borrowing, no Default under this Agreement or the Three-Year Credit Agreement shall have occurred and be continuing; and

       (d)  the fact that the representations and warranties of the Borrowers contained in Sections4.01, 4.02, 4.03, 4.04(a), 4.06 and 4.07 of this Agreement shall be true in all material respects on and as of the date of such Borrowing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true in all material respects as of such earlier date.

Each Borrowing hereunder shall be deemed to be a representation and warranty by each of the Borrowers on the date of such Borrowing as to the facts specified in clauses (b), (c) and (d) of this Section.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Each Borrower (as to itself) and the Company (as to all matters) represents and warrants that:

Section 4.01   Corporate Existence and Power .  Each Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all corporate (or other organizational) powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.  

Section 4.02  Corporate and Governmental Authorization; No Contravention

.  The execution, delivery and performance by each Borrower of this Agreement and the Notes are within each Borrower’s corporate (or other organizational) powers, have been duly authorized by all necessary corporate (or other organizational) action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or of the organizational documents of either Borrower or of any applicable regulation, judgment, injunction, order, decree, material agreement or other material instrument binding upon either Borrower or result in the creation or imposition of any Mortgage on any material asset of either Borrower.

Section 4.03   Binding Effect .  This Agreement constitutes a legal, valid and binding agreement of each Borrower and each Note, if and when executed and delivered in accordance with this Agreement, will constitute a legal, valid and binding obligation of the Borrower which has executed and delivered it, in each case enforceable in accordance with their terms.

Section 4.04   Financial Information .  

       (a)  The consolidated balance sheet of the Company and its Subsidiaries as of April 30, 2008 and the related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, reported on by PricewaterhouseCoopers and incorporated by reference in the Company’s 2008 Form 10-K, a copy of which has been delivered to each of the Banks, and the condensed consolidated balance sheet of the Company and its Subsidiaries as of January 28, 2009 and the related consolidated statement of income and condensed consolidated statement of cash flows for the nine-month period then ended, incorporated in the Company’s report on Form 10-Q for the fiscal quarter ended January 28, 2009, a copy of which has been made available to each of the Banks, fairly present, in conformity with generally accepted accounting principles (but subject, in the case of said balance sheet at January 28, 2009 and such statements of income and cash flows for the nine-month period then ended, to year-end audit adjustments), the consolidated financial position of the Company and its Subsidiaries as of April 30, 2008 and January 28, 2009, respectively, and their consolidated results of operations and cash flows for such fiscal year and such nine-month period, respectively.

       (b)  Since January 28, 2009 there has been no material adverse change in the business, financial position, results of operations or prospects of the Company and its Subsidiaries, considered as a whole.

Section 4.05   Litigation .   There are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is subject that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on the consolidated financial position, shareholders’ equity or results of operations of the Company and its Subsidiaries, taken as a whole, and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

Section 4.06   Disclosure .  Neither the Confidential Information Memorandum nor any of the other reports, financial statements, certificates or other information furnished by or on behalf of either Borrower to the Administrative Agent or any Bank in connection with this Agreement or the Three-Year Credit Agreement or delivered hereunder, taken as a whole, when furnished, contains any untrue statement of  material fact or omits to state a material fact necessary in order to make the statements contained therein not materially misleading, in light of the circumstances under which such statements were made.

Section 4.07  Investment Company Act.

          Neither Borrower is an “investment company” within the meaning of, or subject to regulation under, the Investment Company Act of 1940, as amended.

ARTICLE 5
COVENANTS

The Company agrees that, so long as any Bank has any Commitment hereunder or any amount payable hereunder remains unpaid:

Section 5.01   Information .  The Company will deliver to each of the Banks:

       (a)  its Annual Report on Form 10-K within 15 days after it files the same with the Securities and Exchange Commission;

       (b)  its Quarterly Report on Form 10-Q within 15 days after it files the same with the Securities and Exchange Commission for each of the first three quarters of each fiscal year of the Company;

       (c)  simultaneously with the delivery of the reports referred to in clauses (a) and (b) above, a certificate of the chief financial officer or the chief accounting officer or the Treasurer of the Company (i) stating whether any Default exists on the date of such certificate and, if any Default then exists, setting forth the details thereof and the actions which the Company is taking or proposes to take with respect thereto and (ii) setting forth reasonably detailed calculations as to compliance with Section 5.08;

       (d)  within five days after any executive officer of the Company obtains knowledge of any Default, if such Default is then continuing, a certificate of the chief financial officer or the chief accounting officer of the Company setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto;

       (e)  within 15 days after the mailing thereof to the shareholders of the Company generally, copies of all financial statements, reports and proxy statements so mailed; and

       (f)  within 15 days after filing thereof with the Securities and Exchange Commission, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and Current Reports on Form 8-K (or their equivalent) which the Company shall have filed with the Securities and Exchange Commission.

Information required to be delivered pursuant to clauses 5.01(a), 5.01(b), 5.01(e) or 5.01(f) above shall be deemed to have been delivered on the date on which the Company provides notice to the Banks that such information has been posted on the Company’s website on the Internet at the website address listed on the signature pages hereof, at www.sec.gov or such other website previously notified by the Company to the Banks and accessible by the Banks without charge; provided that the Company shall deliver paper copies of the information referred to in clauses 5.01(a), 5.01(b), 5.01(e) or 5.01(f) to any Bank which requests such delivery.

In the event that the Company shall for any reason cease to be subject to the reporting requirements of the Securities Exchange Act of l934, as amended, it shall nonetheless furnish to the Banks reports containing substantially the same information at substantially the same times as would otherwise be required by the foregoing provisions of this Section 5.01.

Section 5.02   Conduct of Business and Maintenance of Existence .  The Company will, and will cause Heinz Finance to, (i) continue to engage in business of the same general type as now conducted by it, and (ii) preserve, renew and keep in full force and effect its corporate existence (subject to Section 5.07) and its rights, privileges and franchises necessary or desirable in the normal conduct of business.

Section 5.03   Insurance .  The Company will maintain insurance with financially sound and reputable insurers covering all properties and risks as are customarily insured by, and in such amounts as are customarily carried by, firms engaged in businesses similar to that of the Company and its Subsidiaries and similarly situated; provided that the Company may maintain self-insurance reasonable and customary for firms engaged in businesses similar to that of the Company and its Subsidiaries and similarly situated.

Section 5.04   Inspection of Property; Books and Records; Discussions .  The Company will keep proper books of record and account in which entries shall be made of all dealings and transactions in relation to its business and activities, to the extent required by generally accepted accounting principles as in effect from time to time; and, will permit representatives of any Bank at such Bank’s expense to discuss its affairs, finances and accounts with its officers and, upon reasonable prior notice to the Company, its independent public accountants, and to visit and inspect its properties, and its books and records, all at reasonable times during norma