exv10w1



 





EXHIBIT 10.1




EXECUTION COPY



 



 

 






Published CUSIP Number:                     




CREDIT AGREEMENT




Dated as of August 7, 2007




among




STARBUCKS CORPORATION,




as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent




CITIBANK,
N.A.

and

GOLDMAN SACHS BANK USA,

as

Syndication Agents




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC

CITIGROUP GLOBAL MARKETS INC.

and

GOLDMAN SACHS BANK USA,

as




Joint Lead Arrangers and Joint Book Managers




 

 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	
Article I.

DEFINITIONS AND ACCOUNTING TERMS	 	 	 	 
	 
	1.01

	 	DEFINED TERMS
	 	 	1	 
	1.02

	 	OTHER INTERPRETIVE PROVISIONS
	 	 	17	 
	1.03

	 	ACCOUNTING TERMS
	 	 	18	 
	1.04

	 	TIMES OF DAY
	 	 	18	 
	
Article II.

THE COMMITMENTS AND LOANS	 	 	 	 
	 
	2.01

	 	LOANS
	 	 	18	 
	2.02

	 	BORROWINGS, CONVERSIONS AND CONTINUATIONS OF
LOANS
	 	 	18	 
	2.03

	 	MANDATORY PREPAYMENTS AND COMMITMENT
REDUCTIONS
	 	 	20	 
	2.04

	 	[Reserved]
	 	 	20	 
	2.05

	 	[Reserved]
	 	 	20	 
	2.06

	 	OPTIONAL PREPAYMENTS
	 	 	20	 
	2.07

	 	OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS
	 	 	21	 
	2.08

	 	REPAYMENT OF LOANS
	 	 	21	 
	2.09

	 	INTEREST
	 	 	21	 
	2.10

	 	FACILITY FEES
	 	 	22	 
	2.11

	 	COMPUTATION OF INTEREST AND FEES
	 	 	22	 
	2.12

	 	EVIDENCE OF DEBT
	 	 	22	 
	2.13

	 	PAYMENTS GENERALLY; ADMINISTRATIVE AGENT’S
CLAWBACK
	 	 	23	 
	2.14

	 	SHARING OF PAYMENTS BY LENDERS
	 	 	25	 
	
Article III.

TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	 	 






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	 	 	 	 	Page
	 
	3.01

	 	TAXES
	 	 	25	 
	3.02

	 	ILLEGALITY
	 	 	28	 
	3.03

	 	INABILITY TO DETERMINE RATES
	 	 	28	 
	3.04

	 	INCREASED COSTS
	 	 	28	 
	3.05

	 	COMPENSATION FOR LOSSES
	 	 	29	 
	3.06

	 	MITIGATION OBLIGATIONS; REPLACEMENT OF
LENDERS
	 	 	30	 
	3.07

	 	SURVIVAL
	 	 	30	 
	
Article IV.

CONDITIONS PRECEDENT TO LOANS	 	 	 	 
	 
	4.01

	 	CONDITIONS OF LOANS
	 	 	31	 
	4.02

	 	CONDITIONS TO ALL LOANS
	 	 	32	 
	
Article V.

REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	5.01

	 	EXISTENCE, QUALIFICATION AND POWER;
COMPLIANCE WITH LAWS
	 	 	33	 
	5.02

	 	AUTHORIZATION; NO CONTRAVENTION
	 	 	33	 
	5.03

	 	GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS
	 	 	33	 
	5.04

	 	BINDING EFFECT
	 	 	33	 
	5.05

	 	FINANCIAL STATEMENTS; NO MATERIAL ADVERSE
EFFECT; NO INTERNAL CONTROL EVENT
	 	 	33	 
	5.06

	 	LITIGATION
	 	 	34	 
	5.07

	 	NO DEFAULT
	 	 	34	 
	5.08

	 	OWNERSHIP OF PROPERTY; LIENS
	 	 	34	 
	5.09

	 	ENVIRONMENTAL COMPLIANCE
	 	 	34	 
	5.10

	 	INSURANCE
	 	 	35	 
	5.11

	 	TAXES
	 	 	35	 
	5.12

	 	ERISA COMPLIANCE
	 	 	35	 






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	 	 	 	 	Page
	5.13

	 	SUBSIDIARIES; EQUITY INTERESTS
	 	 	36	 
	5.14

	 	MARGIN REGULATIONS; INVESTMENT COMPANY ACT
	 	 	36	 
	5.15

	 	DISCLOSURE
	 	 	36	 
	5.16

	 	COMPLIANCE WITH LAWS
	 	 	36	 
	5.17

	 	INTELLECTUAL PROPERTY; LICENSES,
ETC.
	 	 	37	 
	
Article VI.

AFFIRMATIVE COVENANTS	 	 	 	 
	 
	6.01

	 	FINANCIAL STATEMENTS
	 	 	37	 
	6.02

	 	CERTIFICATES; OTHER INFORMATION
	 	 	38	 
	6.03

	 	NOTICES
	 	 	39	 
	6.04

	 	PAYMENT OF OBLIGATIONS
	 	 	40	 
	6.05

	 	PRESERVATION OF EXISTENCE, ETC.
	 	 	40	 
	6.06

	 	MAINTENANCE OF PROPERTIES
	 	 	40	 
	6.07

	 	MAINTENANCE OF INSURANCE
	 	 	41	 
	6.08

	 	COMPLIANCE WITH LAWS
	 	 	41	 
	6.09

	 	BOOKS AND RECORDS
	 	 	41	 
	6.10

	 	INSPECTION RIGHTS
	 	 	41	 
	6.11

	 	USE OF PROCEEDS
	 	 	41	 
	
Article VII.

NEGATIVE COVENANTS	 	 	 	 
	 
	7.01

	 	LIENS
	 	 	41	 
	7.02

	 	INDEBTEDNESS
	 	 	42	 
	7.03

	 	FUNDAMENTAL CHANGES
	 	 	43	 
	7.04

	 	CHANGE IN NATURE OF BUSINESS
	 	 	44	 
	7.05

	 	TRANSACTIONS WITH AFFILIATES
	 	 	44	 
	7.06

	 	CONSOLIDATED FIXED CHARGE COVERAGE RATIO
	 	 	44	 






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	 	 	 	 	Page
	 
	7.07

	 	BURDENSOME AGREEMENTS
	 	 	44	 
	
Article VIII.

EVENTS OF DEFAULT AND REMEDIES	 	 	 	 
	 
	8.01

	 	EVENTS OF DEFAULT
	 	 	44	 
	8.02

	 	REMEDIES UPON EVENT OF DEFAULT
	 	 	46	 
	8.03

	 	APPLICATION OF FUNDS
	 	 	46	 
	
Article IX.

ADMINISTRATIVE AGENT	 	 	 	 
	 
	9.01

	 	APPOINTMENT AND AUTHORITY
	 	 	47	 
	9.02

	 	RIGHTS AS A LENDER
	 	 	47	 
	9.03

	 	EXCULPATORY PROVISIONS
	 	 	48	 
	9.04

	 	RELIANCE BY ADMINISTRATIVE AGENT
	 	 	48	 
	9.05

	 	DELEGATION OF DUTIES
	 	 	49	 
	9.06

	 	RESIGNATION OF ADMINISTRATIVE AGENT
	 	 	49	 
	9.07

	 	NON-RELIANCE ON ADMINISTRATIVE AGENT AND
OTHER LENDERS
	 	 	50	 
	9.08

	 	NO OTHER DUTIES, ETC.
	 	 	50	 
	9.09

	 	ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM
	 	 	50	 
	
Article X.

MISCELLANEOUS	 	 	 	 
	 
	10.01

	 	AMENDMENTS, ETC.
	 	 	51	 
	10.02

	 	NOTICES; EFFECTIVENESS; ELECTRONIC
COMMUNICATION
	 	 	52	 
	10.03

	 	NO WAIVER; CUMULATIVE REMEDIES
	 	 	53	 
	10.04

	 	EXPENSES; INDEMNITY; DAMAGE WAIVER
	 	 	54	 
	10.05

	 	PAYMENTS SET ASIDE
	 	 	55	 
	10.06

	 	SUCCESSORS AND ASSIGNS
	 	 	55	 
	10.07

	 	TREATMENT OF CERTAIN INFORMATION;
CONFIDENTIALITY
	 	 	58	 






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	 	 	 	 	Page
	 
	10.08

	 	RIGHT OF SETOFF
	 	 	59	 
	10.09

	 	INTEREST RATE LIMITATION
	 	 	60	 
	10.10

	 	COUNTERPARTS; INTEGRATION; EFFECTIVENESS
	 	 	60	 
	10.11

	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	10.12

	 	SEVERABILITY
	 	 	60	 
	10.13

	 	REPLACEMENT OF LENDERS
	 	 	61	 
	10.14

	 	GOVERNING LAW; JURISDICTION; ETC.
	 	 	61	 
	10.15

	 	WAIVER OF JURY TRIAL
	 	 	62	 
	10.16

	 	USA PATRIOT ACT NOTICE
	 	 	62	 
	10.17

	 	NO FIDUCIARY DUTY
	 	 	63	 
	 
	 	 	 	 	 	 
	SIGNATURES	 	 	S-1	 






SCHEDULES



2.01   Commitments and Applicable Percentages

5.05   Supplement to Interim Financial Statements

5.06   Litigation

5.13   Subsidiaries and Other Equity Investments

7.01   Existing Liens

7.02   Existing Indebtedness

10.02 Administrative Agent’s Office; Certain Addresses for Notices




EXHIBITS



FORM OF



A   Loan Notice

B   Note

C   Compliance Certificate

D   Assignment and Assumption

E   Opinion Matters





v 









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of August 7, 2007, among
STARBUCKS CORPORATION, a Washington corporation (the “Company”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent.



     The Company has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 DEFINED TERMS. As used in this Agreement, the following terms will have the meanings set
forth below:



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



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



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



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



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



     “Agreement” means this Credit Agreement.



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



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Fixed Charge Coverage Ratio and the Debt Rating as set forth below:



1









 





APPLICABLE RATE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	PRICING	 	FIXED CHARGE	 	 	 	FACILITY	 	EUROCURRENCY
	LEVEL	 	COVERAGE RATIO	 	DEBT RATINGS	 	FEE	 	RATE
	 	 	 
	 	 	 	 	 	 	 	 	 	 
	I
	 	Greater than or equal to 4.50x

	 	AA- / Aaa or better
	 	 	0.040	%	 	 	0.110	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 
	II
	 	Greater than or equal to
4.00x but less than 4.50x

	 	A+ / Al
	 	 	0.050	%	 	 	0.125	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 
	III
	 	Greater than or equal to
3.50x but less than 4.00x

	 	A / A2
	 	 	0.060	%	 	 	0.140	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 
	IV
	 	Greater than or equal to
3.00x but less than 3.50x

	 	A- / A3
	 	 	0.070	%	 	 	0.205	%
	 	 	 
	 	 	 	 	 	 	 	 	 	 
	V
	 	Less than 3.00x

	 	BBB+/ Baal or worse
	 	 	0.080	%	 	 	0.270	%





provided, that the percentages set forth above under the column “Eurocurrency Rate” shall be
increased by 0.250 on the date that is three months after the Closing Date, by another 0.250 on the
date that is six months after the Closing Date and by another 0.250 on the date that is nine months
after the Closing Date.




     Initially, the Applicable Rate will be determined based upon the Consolidated Fixed Charge
Coverage Ratio as specified in the certificate delivered pursuant to Section 4.01(a)(vii).
If, as of any date of determination, the Consolidated Fixed Charge Coverage Ratio corresponds to a
Pricing Level different than that Pricing Level corresponding to the Debt Rating issued at the time
of calculation of such ratio, then the lower of such two Pricing Levels (with Pricing Level I being
the lowest and the Pricing Level V being the highest) will apply, unless there is a split of more
than one level in corresponding Pricing Levels, in which case the Pricing Level that is one level
higher than the lower Pricing Level will apply. Thereafter, each change in the Applicable Rate
resulting from a publicly announced change in the Debt Rating will be effective during the period
commencing on the date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next such change, and any change in the Applicable Rate
resulting from a change in the Consolidated Fixed Charge Coverage Ratio will become effective as of
the first Business Day after the date on which such Compliance Certificate is delivered pursuant to
Section 6.02(a); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level V will apply as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered. In the event that a Debt Rating has not been issued as of any date of determination,
the Pricing Level corresponding to the Consolidated Fixed Charge Coverage Ratio as of such date of
determination shall apply. In the event that only one Debt Rating has been issued as of any date
of determination, that Debt Rating shall apply.



2









 





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



     “Arrangers” means BAS, Citigroup Global Markets Inc. and Goldman Sachs Bank USA, in
their capacities as joint lead arrangers and joint book managers.



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



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



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended October 1, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.07, and (c) the date of termination of the commitment of each Lender to make
Loans pursuant to Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors. “BAS” means
Banc of America Securities LLC and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% 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 will take effect at the opening of business on the day
specified in the public announcement of such change, which date will not be earlier than the date
of the public announcement.



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



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



3









 





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



     “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 Office is located and if such day relates to any interest rate
settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in
respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in US Dollars are conducted by and between banks in the London interbank eurodollar
market.



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



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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group will be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of 25%
or more of the equity securities of the Company entitled to vote for members of the board of
directors or equivalent governing body of the Company on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to acquire pursuant
to any option right);




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



4









 







any person or group other than a solicitation for the election of one or more directors
by or on behalf of the board of directors); or




     (c) any Person or two or more Persons acting in concert will have acquired by contract
or otherwise, or will have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Company, or
control over the equity securities of the Company entitled to vote for members of the board
of directors or equivalent governing body of the Company on a fully-diluted basis (and
taking into account all such securities that such Person or group has the right to acquire
pursuant to any option right) representing 25% or more of the combined voting power of such
securities.



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



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commitment” means, as to each Lender, its obligation to make Loans to the Company
pursuant to Section 2.01, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.



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



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



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



     “Consolidated Fixed Charge Coverage Ratio” means, as of the end of any fiscal quarter,
for the four fiscal quarters ending on such date, for the Company and its Subsidiaries on a
consolidated basis, the ratio of (a) (i) Consolidated EBITDA during such period plus (iii)
Operating Lease and Rental Expense during such period to (b) the sum of (x) Consolidated Interest
Charges during such period plus, without duplication, (y) Operating Lease and Rental Expense during
such period.



5









 





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



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



     “Consolidated Total Assets” means, as of the date of determination, the total assets
of the Company and its Subsidiaries which would be shown as assets on a consolidated balance sheet
of the Company as of such time prepared in accordance with GAAP.



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



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



     “Debt Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”) of the Company’s
non-credit-enhanced, senior unsecured long-term debt; provided that if a Debt Rating is issued by
each of the foregoing rating agencies, then the higher of such Debt Ratings will apply (with the
Debt Rating for Pricing Level I being the highest and the Debt Rating for Pricing Level V being the
lowest), unless there is a split in Debt Ratings of more than one level, in which case the Pricing
Level that is one level lower than the Pricing Level of the higher Debt Rating will apply.



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



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



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



6









 





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



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (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” will not include the Company or any of the Company’s Affiliates or
Subsidiaries.



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



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



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



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



7









 





     “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 that 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; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.



     “Eurocurrency Base Rate” means, for such Interest Period:




     (a) the rate per annum equal to the British Banker’s Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time) as
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, for deposits in US Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period.




     (b) If such rate referenced in the preceding clause (a) is not available at such time
for any reason, then the “Eurocurrency Base Rate” for such Interest Period will be the rate
per annum determined by the Administrative Agent to be the rate at which deposits in US
Dollars for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for US Dollars at their request at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period.



     “Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 
	Eurocurrency Rate #=

	 	Eurocurrency Base Rate
	 

	 	 
	 

	 	1.00 — Eurocurrency Reserve Percentage






8









 






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



     “Eurocurrency 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 Lender, 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”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan
will be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve
Percentage.



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



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



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



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



9









 





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



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



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



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



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



10









 





     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




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




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




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




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 90 days after the date on which such trade account payable
was created);




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




     (f) capital leases and Synthetic Lease Obligations;




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




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



     For all purposes hereof, the Indebtedness of any Person will include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date will be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date will be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective



11









 







dates that fall every three months after the beginning of such Interest Period will also be
Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March,
June, September and December and the Maturity Date.



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




     (i) any Interest Period longer than one week that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;




     (ii) any Interest Period longer than one week pertaining to a Eurocurrency Rate Loan
that begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such Interest Period;
and




     (iii) no Interest Period will extend beyond the Maturity Date.



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



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



     “IRS” means the United States Internal Revenue Service.



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



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



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



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or



12









 







other encumbrance on title to real property, and any financing lease having substantially the
same economic effect as any of the foregoing).



     “Loan” has the meaning specified in Section 2.01.



     “Loan Documents” means this Agreement and each Note.



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



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
condition (financial or otherwise) 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 to which it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company of any Loan Document to which it is a party.



     “Material Subsidiary” means each Subsidiary of the Company that meets any of the
following tests: (a) its assets equal or exceed 3% of Consolidated Total Assets of the Company and
its Subsidiaries, or (b) its revenues equal or exceed 3% of the total revenues of the Company and
its Subsidiaries on a consolidated basis; provided that (i) if the Subsidiaries that meet either of
the tests in (a) or (b), when combined with revenues generated or assets owned directly by the
Company (excluding any assets or revenues located or generated at the Subsidiary level), aggregate
less than 90% of the Consolidated Total Assets or total revenues of the Company and its
Subsidiaries on a consolidated basis, the Company shall identify additional Subsidiaries to
constitute Material Subsidiaries until such threshold is met, and (ii) once a Subsidiary is deemed
a Material Subsidiary, whether by virtue of the tests in (a) and (b) above, or as a result of
appointment pursuant to part (i) of this proviso, such Subsidiary shall continue to constitute a
Material Subsidiary throughout the term of this Agreement.



     “Maturity Date” means August 5, 2008.



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



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



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Company arising under any Loan Document or otherwise with respect to any Loan,
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising and including interest and fees that accrue



13









 







after the commencement by or against the Company of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.



     “Operating Lease and Rental Expense” means, for any period, all operating lease
expense and all other rental expense incurred by the Company and its Subsidiaries during such
period.



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



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



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



     “Overnight Rate” means, for any day, the greater of (i) the Federal Funds Rate and
(ii) an overnight rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



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



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



14









 





     “Platform” has the meaning specified in Section 6.02.



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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans have been
terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total
Outstandings; provided that the Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender will be excluded for purposes of making a determination of
Required Lenders.



     “Responsible Officer” means the president and chief executive officer, executive vice
president and chief financial officer, senior vice president, Finance, or the vice president and
treasurer of the Company. Any document delivered hereunder that is signed by a Responsible Officer
of the Company will be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of the Company and such Responsible Officer will be
conclusively presumed to have acted on behalf of the Company.



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



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



     “Same Day Funds” means immediately available funds.



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



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



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



15









 







Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



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



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



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



     “Syndication
Agents” means each of Citibank,
N.A. and Goldman Sachs Bank
USA.



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



16









 





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



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



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



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



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



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



     1.02 OTHER INTERPRETIVE PROVISIONS With reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan Document:




     (a) The definitions of terms herein will apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun will include the
corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” will be deemed to be followed by the phrase “without limitation.” The word
“will” will be construed to have the same meaning and effect as the word “shall.” Unless
the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) will be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person will be construed to include such Person’s successors and
assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import
when used in any Loan Document, will be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a Loan Document
to Articles, Sections, Exhibits and Schedules will be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law will include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference to any law or
regulation will, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset” and “property” will
be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




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



17









 






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



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



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



     1.04 TIMES OF DAY. Unless otherwise specified, all references herein to times of day will be
references to Pacific time (daylight or standard, as applicable).



ARTICLE II. THE COMMITMENTS AND LOANS




     2.01 LOANS. Subject to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Loan”) to the Company in US Dollars from time to time, on
any Business Day during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to
any Borrowing, (i) the Total Outstandings will not exceed the Aggregate Commitments and (ii) the
aggregate Outstanding Amount of the Loans of any Lender will not exceed such Lender’s Commitment.
Within the limits of each Lender’s Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01, prepay under Section 2.06, and reborrow
under this Section 2.01. Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.



     2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans will be made upon the Company’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) two Business Days prior to the requested date of
any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion of
Eurocurrency Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans; provided, however, that if the Company wishes to



18









 







request Eurocurrency Rate Loans having an Interest Period other than one week or one, two,
three or six months in duration as provided in the definition of “Interest Period”, the applicable
notice must be received by the Administrative Agent not later than 10:00 a.m. four Business Days
prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate
Loans denominated in US Dollars, whereupon the Administrative Agent will give prompt notice to the
Lenders of such request and determine whether the requested Interest Period is acceptable to all of
them. Not later than 10:00 a.m., (i) two Business Days before the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent will
notify the Company (which notice may be by telephone) whether or not the requested Interest Period
has been consented to by all the Lenders. Each telephonic notice by the Company pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Notice, appropriately completed and signed by a Responsible Officer of the Company. Each
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans will be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or
conversion to Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Loan Notice (whether telephonic or written) will specify (i)
whether the Company is requesting a Borrowing, a conversion of Loans from one Type to the other, or
a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which will be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Company fails to specify a Type of Loan in a Loan Notice, then the
applicable Loans will be made as Base Rate Loans. If the Company fails to give timely notice
requesting a conversion or continuation of a Eurocurrency Rate Loan, such Eurocurrency Rate Loan
will be continued with an Interest Period of one week. Any automatic conversion to Base Rate Loans
will be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one week.



     (b) Following receipt of a Loan Notice, the Administrative Agent will promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Company, the Administrative Agent will notify
each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans,
in each case as described in the preceding subsection. In the case of a Borrowing, each Lender
will make the amount of its Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office not later than 12:00 p.m. on the Business Day specified in the
applicable \ Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Loan, Section 4.01), the Administrative Agent will make all
funds so received available to the Company in like and same day funds as received by the
Administrative Agent either by (i) crediting the account of such Company on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Company.



19









 





     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans without the consent of the Required Lenders.



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



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



     2.03 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS.. On the first Business Day
following the date of receipt by the Company or any of its Subsidiaries of any cash proceeds from
the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries in the capital
markets having a maturity of more than 397 days, the Company shall prepay the Loans and/or the
Commitments shall be permanently reduced in an aggregate amount equal to 100% of such proceeds, net
of underwriting discounts, fees and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal and accounting fees and expenses.).



     2.04 [Reserved].



     2.05 [Reserved].



     2.06 OPTIONAL PREPAYMENTS. The Company may, upon notice from it to the Administrative Agent, at
any time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not later than
10:00 a.m. (A) two Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and
(B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans
will be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof;
and (iii) any prepayment of Base Rate Loans will be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice will specify the date and amount of such prepayment and
the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.
If such notice is given by the Company, it will make such prepayment and the payment amount
specified in such notice will be due and payable on the date specified therein. Any prepayment of
a Eurocurrency Rate Loan will be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05. Each such prepayment will
be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.



20









 





     2.07 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice will be received by the Administrative
Agent not later than 10:00 a.m. two Business Days prior to the date of termination or reduction,
(ii) any such partial reduction will be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof and (iii) the Company will not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments will be applied to the Commitment of each Lender according
to its Applicable Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments will be paid on the effective date of such termination.



     2.08 REPAYMENT OF LOANS. The Company will repay to the Lenders on the Maturity Date the aggregate
principal amount of Loans made to it outstanding on such date.



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




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




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




     (iii) While any Event of Default exists, the Company will pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.




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



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



21









 





     2.10 FACILITY FEES.



          . The Company will pay to the Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, a facility fee equal to the Applicable Rate times the
actual daily amount of the Aggregate Commitments (or, if the Aggregate Commitments have terminated,
on the Outstanding Amount of all Loans), regardless of usage. The facility fee will accrue at all
times during the Availability Period (and thereafter so long as any Loans remain outstanding),
including at any time during which one or more of the conditions in Article IV is not met, and will
be due and payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the Maturity
Date (and, if applicable, thereafter on demand). The facility fee will be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount will be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.




     2.11 COMPUTATION OF INTEREST AND FEES. (a) All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” will be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest will be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest will accrue on each Loan for the day on which the Loan is made, and will not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made will, subject to Section 2.13(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder will be conclusive and binding for all purposes, absent manifest error.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Company or for any other reason, the Company or the Lenders determine that (i) the Consolidated
Fixed Charge Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Fixed Charge Ratio would have resulted in higher pricing for
such period, the Company shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent or any Lender), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent or any Lender, as the case may be, under Section 2.09(b) or under
Article VIII. The Borrower’s obligations under this paragraph shall survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.



     2.12 EVIDENCE OF DEBT. The Loans made by each Lender will be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender will be
conclusive absent manifest error of the amount of the Loans made



22









 







by the Lenders to the Company and the interest and payments thereon. Any failure to so record or
any error in doing so will not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Obligations. The Administrative Agent will
provide to the Company, upon its request, a statement of Loans, payments and other transactions
pursuant to this Agreement. Such statement will be deemed correct, accurate, and binding on the
Company (except for corrections and errors discovered by the Administrative Agent), unless the
Company notifies the Administrative Agent in writing to the contrary within thirty (30) days after
such statement is rendered. In the event a timely written notice of objections is given by the
Company, only the items to which exception is expressly made will be considered to be disputed by
the Company. In the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent will control in the absence of manifest error.
Upon the request of any Lender to the Company made through the Administrative Agent, the Company
will execute and deliver to such Lender (through the Administrative Agent) a Note, which will
evidence such Lender’s Loans to the Company in addition to such accounts or records. Each Lender
may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.



     2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT’S CLAWBACK. (a) General. All
payments to be made by the Company will be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Company hereunder will be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in US Dollars and in Same Day Funds not later than 1:00 p.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 1:00 p.m.
will be deemed received on the next succeeding Business Day and any applicable interest or fee will
continue to accrue. If any payment to be made by the Company will come due on a day other than a
Business Day, payment will be made on the next following Business Day, except (i) as otherwise set
forth in the definition of Interest Period, or (ii) that no payment will extend past the Maturity
Date or the end of the Availability Period, and such extension of time will be reflected in
computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent will have received notice from a Lender prior to the proposed date of any
Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
11:00 a.m. on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02 (or, in
the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Company a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Company severally agree to pay to the Administrative



23









 







Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon,
for each day from and including the date such amount is made available to the Company to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the Overnight Rate and (B) in the case of a payment to be made by the Company,
the interest rate applicable to Base Rate Loans. If the Company and such Lender will pay such
interest to the Administrative Agent for the same or an overlapping period, the Administrative
Agent will promptly remit to the Company the amount of such interest paid by the Company for such
period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent,
then the amount so paid will constitute such Lender’s Loan included in such Borrowing. Any payment
by the Company will be without prejudice to any claim the Company may have against a Lender that
will have failed to make such payment to the Administrative Agent.



     (ii) Payments by the Company; Presumptions by Administrative Agent. Unless the
Administrative Agent will have received notice from the Company prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders hereunder that the
Company will not make such payment, the Administrative Agent may assume that the Company has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Company has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender in Same Day Funds with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Overnight Rate.



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



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



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



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



24









 





     2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender will, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the
Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Loans or such participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater proportion will (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in
the Loans of the other Lenders, or make such other adjustments as will be equitable, so that the
benefit of all such payments will be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans and other amounts owing them,
provided that:




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




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



     For purposes of this Section 2.14, any calculation of pro rata shares of Loans will be
determined on the basis of the Outstanding Amount of all Loans.



     The Company consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Company rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Company in the amount of
such participation.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 TAXES.



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



25









 





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



     (c) Indemnification by the Company. The Company will indemnify the Administrative
Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
will be conclusive absent manifest error.



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



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



     Without limiting the generality of the foregoing, in the event that the Company is resident
for tax purposes in the United States, any Foreign Lender will deliver to the Company and the
Administrative Agent (in such number of copies as will be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




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




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




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such



26









 







Foreign Lender is not (A) a “bank” within the meaning of section 881(c) (3) (A) of the
Code, (B) a “10 percent shareholder” of the Company within the meaning of section 881(c) (3)
(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c) (3)
(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or




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



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



     (f) Treatment of Certain Refunds. If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Company or with respect to which the Company has paid
additional amounts pursuant to this Section, it will pay to the Company an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Company under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be,
and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Company, upon the request of the Administrative Agent or
such Lender, agrees to repay the amount paid over to the Company (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay



27









 







such refund to such Governmental Authority. This subsection will not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Company or any other Person.



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



     3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits are not being offered to banks in the applicable offshore interbank market in US
Dollars for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan, or (c) the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative
Agent will promptly so notify the Company and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurocurrency Rate Loans will be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, the Company may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 INCREASED COSTS.



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




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




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurocurrency Rate Loan made by it, or change the basis of taxation of



28









 







payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender); or




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


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




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



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



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



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



29









 





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



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



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


consisting of loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.



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




     3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.



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



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



     3.07 SURVIVAL. All of the Company’s obligations under this Article III will survive termination of
the Aggregate Commitments and repayment of all other Obligations hereunder.



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ARTICLE IV.

CONDITIONS PRECEDENT TO LOANS




     4.01 CONDITIONS OF LOANS. The obligation of each Lender to make its initial Loan hereunder is
subject to satisfaction of the following conditions precedent:



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




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




     (ii) Notes executed by the Company in favor of each Lender requesting Notes;




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




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Company is duly organized or formed, and that the Company is
validly existing and in good standing in its jurisdiction of incorporation;




     (v) favorable opinions of a vice president and assistant general counsel of the
Company and DLA Piper US, LLP, special outside counsel to the Company, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit G in the
aggregate;




     (vi) a certificate of a Responsible Officer of the Company either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by the Company and the validity against the Company of the Loan
Documents, and such consents, licenses and approvals will be in full force and effect, or
(B) stating that no such consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer of the Company certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been satisfied (B) that there
has been no event or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) a calculation of the Consolidated Fixed Charge Coverage
Ratio as of July 1, 2007;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal
quarter of the Company ended on July 1, 2007, signed by a Responsible Officer of the
Company; and



31









 






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



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



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



     (d) The Closing Date will have occurred on or before August 15, 2007.



     Without limiting the generality of the provisions of Section 9.04, for purposes of determining
compliance with the conditions specified in this Section 4.01, each Lender that has signed this
Agreement will be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent will have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.



     4.02 CONDITIONS TO ALL LOANS. The obligation of each Lender to honor any Loan Notice (other than a
Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of
Eurocurrency Rate Loans) is subject to the following conditions precedent:



     (a) The representations and warranties of the Company contained in Article V and in
each other Loan Document or in any document furnished at any time under or in connection herewith
or therewith, will be true and correct on and as of the date of such Credit Extension, except (i)
for the representations and warranties contained in Section 5.05(c) and Section
5.06(b), (ii) to the extent that such representations and warranties specifically refer to an
earlier date, in which case they will be true and correct as of such earlier date, and (iii) that
for purposes of this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 will be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.



     (b) No Default exists, or would result from such proposed Loan or the application of the
proceeds thereof.



     (c) The Administrative will have received a Loan Notice in accordance with the requirements
hereof.



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



32









 





ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



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



     5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and performance by the Company of
each Loan Document to which it is party, have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene the terms of the Company’s
Organization Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation
to which the Company is a party or affecting it or its properties or any of its Subsidiaries that
was required to be filed as an exhibit to the Company’s Annual Report on Form 10-K/A for the fiscal
year ended October 1, 2006 or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Company or its property is subject; or (c) violate any
Law. The Company and each Subsidiary thereof is in compliance with all Contractual Obligations
referred to in clause (b) (i), except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. Other than a filing on Form 8-K with the SEC, no
approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of this Agreement or any
other Loan Document.



     5.04 BINDING EFFECT. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by the Company. This Agreement constitutes,
and each other Loan Document when so delivered will constitute, a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to
applicable Debtor Relief Laws and the effect of general principles of equity, whether applied by a
court of law or equity.



     5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL EVENT.



33









 





     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other material liabilities, direct or contingent, of the
Company and its Subsidiaries as of the date thereof.



     (b) The unaudited consolidated balance sheet of the Company and its Subsidiaries dated April
1, 2007, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Company and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other material liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of the date of such financial
statements.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     5.06 LITIGATION. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Company after due and diligent investigation, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against the Company or any of
its Subsidiaries or against any of their properties that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except
as specifically disclosed in Schedule 5.06, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, and there has been no material adverse
change in the status, or financial effect on the Company or any Subsidiary thereof, of the matters
described on Schedule 5.06.



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



     5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Company and each Subsidiary has good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws



34









 







and claims alleging potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof the Company has
reasonably concluded that such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.



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



     5.11 TAXES. The Company and its Subsidiaries have filed all material Federal, state and other tax
returns and reports required to be filed, and have paid all material Federal, state and other
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect. Neither the Company nor any
Subsidiary thereof is party to any tax sharing agreement other than any tax sharing arrangement
between or among the Company and any one or more Subsidiaries.



     5.12 ERISA COMPLIANCE.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Company, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Company and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur which has resulted or
reasonably could result in liability of the Company in an amount in excess of $25,000,000; (ii) the
aggregate amount of Unfunded Pension Liability among all Pension Plans does not exceed $25,000,000;
(iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability in excess of $25,000,000 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 liability in excess of
$25,000,000 (and no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or



35









 





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 Sections 4069 or 4212(c) of ERISA.



     5.13 SUBSIDIARIES; EQUITY INTERESTS. The Company has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13 (as it may be updated by the Company from time to time), and
all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully
paid and nonassessable and are owned by the Company in the amounts specified on Part (a) of
Schedule 5.13 (as it may be updated by the Company from time to time) free and clear of all Liens.
The Company has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13 (as it may be updated by the Company from time
to time). All of the outstanding Equity Interests in the Company have been validly issued and are
fully paid and nonassessable.



     5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT.



     (a) The Company is not engaged nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing, not more than 25% of
the value of the assets (either of the Company only or of the Company and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 7.01 or subject to any restriction
contained in any similar agreement or instrument between the Company and any Lender or any
Affiliate of any Lender relating to Indebtedness will be margin stock.



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



     5.15 DISCLOSURE. The Company has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally, and if orally, on which
the Administrative Agent or such Lender in good faith and reasonably relies) by or on behalf of the
Company to the Administrative Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by, and taken together as a whole with, other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information, the
Company represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.



     5.16 COMPLIANCE WITH LAWS. Each of the Company and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by



36









 







appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its Subsidiaries own, or possess the
right to use, without conflict with the rights of any other Person, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) with respect to which the failure to possess or
have the right to use or the presence of a conflict with the rights of any other Person could not
reasonably be expected to have a Material Adverse Effect. 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 Subsidiary infringes upon any
rights held by any other Person, except where such infringement could not reasonably be expected to
have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Company, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



ARTICLE VI.

AFFIRMATIVE COVENANTS




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



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



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year
of the Company (commencing with the fiscal year ending September 30, 2007), a consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of a Registered Public Accounting Firm of nationally recognized standing as to
whether such financial statements are free of material misstatement, which report and opinion will
be prepared in accordance with audit standards of the Public Company Accounting Oversight Board and
will not be subject to any “going concern” or like qualification or exception or any qualification
or exception as to the scope of such audit or with respect to the absence of material misstatement;
and



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ending
July 1, 2007), a consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal quarter, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then
ended, setting forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the



37









 







previous fiscal year, all in reasonable detail, certified by a Responsible Officer of the
Company as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.



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



     6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent and each Lender, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) (A) management’s assessment of the effectiveness of the Company’s internal control over
financial reporting as of the end of the Company’s most recent fiscal year for which such
assessment was required in accordance with Item 308 of SEC Regulation S-K expressing a conclusion
as to which the Required Lenders reasonably do not object, and (B) with respect to the most recent
fiscal year of the Company for which such assessment was required, an attestation report (or
reports) of a Registered Public Accounting Firm on management’s assessment and the opinion of the
Registered Public Accounting Firm independently assessing the effectiveness of the Company’s
internal control over financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB
Auditing Standard No. 2, and Section 404 of Sarbanes-Oxley expressing a conclusion as to which the
Required Lenders reasonably do not object;



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



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



     (d) promptly, and in any event within five Business Days after receipt thereof by the
Company or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of the Company or any Subsidiary thereof; and



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



38









 





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



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



     6.03 NOTICES. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including any such matter resulting from (i) breach or non-performance



39









 







of, or any default under, a Contractual Obligation of the Company or any 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 Subsidiary, including pursuant to any
applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event;



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



     (e) of the occurrence of any Internal Control Event; and



     (f) of any announcement by Moody’s or S&P of any change or possible change in a Debt Rating.



     Each notice pursuant to this Section will be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) will describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.



     6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same will become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property and such Lien is not permitted under Section 7.01; and
(c) all Indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.



     6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in full force and effect the
legal existence and good standing of the Company and its Material Subsidiaries under the Laws of
the jurisdiction of its organization except in a transaction permitted by Section 7.03; (b) take
all reasonable action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew
all of its registered patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.



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



40









 





     6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and reputable insurance companies
that are not Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts (after giving effect to any self-insurance) as
are customarily carried under similar circumstances by such other Persons and providing for not
less than 30 days’ prior notice to the Company, which shall then promptly notify the Administrative
Agent, of termination, lapse or cancellation of such insurance.



     6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 BOOKS AND RECORDS. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied will be made of all financial
transactions and matters involving the assets and business of the Company or such Subsidiary, as
the case may be.



     6.10 INSPECTION RIGHTS. Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent public accountants,
provided, however, that such visits, inspections or examinations will be made at a reasonable time
during normal business hours with due regard for, and minimal disruption of, the business of the
Company and its Subsidiaries, and will not (a) be at the expense of the Company, (b) occur more
frequently than once in any 12-month period and (c) be made without five (5) Business Days’ prior
notice; provided further, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Company at any time during normal business hours and without
advance notice.



     6.11 USE OF PROCEEDS. Use the proceeds of the Loans for general corporate purposes not in
contravention of any Law or of any Loan Document, such general corporate purposes will include
working capital, capital expenditures, acquisitions and share repurchases.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender will have any Commitment hereunder, any Loan or other Obligation
hereunder will remain unpaid or unsatisfied, the Company in Section 7.01 and Sections 7.03 through
7.06 will not, nor will it permit or allow any Subsidiary in any section of this Article VII to,
directly or indirectly:



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



41









 





     (a) [Intentionally omitted];



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with
respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.02(a);



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



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 60 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



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



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



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



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



     (i) Liens securing Indebtedness permitted under Section 7.02(d); and



     (j) Liens not otherwise permitted by Sections 7.01(a) through (i) which will not in the
aggregate at any time attach to assets of the Company and its Subsidiaries in excess of 5% of the
Consolidated Total Assets of the Company.



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



     (a) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and (ii) the terms relating to principal



42









 







amount, amortization, maturity, collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such refinancing, refunding, renewing or extending
Indebtedness, and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Company or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed
or extended and the interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest rate;



     (b) Guarantees of any Subsidiary in respect of Indebtedness otherwise permitted hereunder of
any Subsidiary;



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



     (d) secured Indebtedness not otherwise permitted by Section 7.02(a) in an aggregate
principal amount at any time outstanding that does not exceed 2% of the Consolidated Total Assets
of the Company;



     (e) unsecured Indebtedness not otherwise permitted by Sections 7.02(a) through (c) in an
aggregate principal amount at any time outstanding that does not exceed 5% of the Consolidated
Total Assets of the Company; and



     (f) intercompany loans made between the Company and a Subsidiary or any two Subsidiaries.



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



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



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



43









 





     7.04 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business substantially different
from those lines of business conducted by the Company and its Subsidiaries on the date hereof or
any business substantially related or incidental thereto.



     7.05 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind with any Affiliate of
the Company, whether or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other
than an Affiliate, provided that the foregoing restriction will not apply to transactions between
or among the Company and any of its wholly-owned Subsidiaries or between and among any wholly-owned
Subsidiaries.



     7.06 CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated Fixed Charge Coverage Ratio
as of the last day of any period of four consecutive fiscal quarters of the Company to be less than
2.50 to 1.00.



     7.07 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other than this Agreement, any
other Loan Document and any other debt instrument or agreement governing Indebtedness the net
proceeds of which exceed the Aggregate Commitments and are applied in accordance Section 2.03) that
(a) limits the ability (i) of any Subsidiary to make Restricted Payments to the Company or any
Subsidiary or to otherwise transfer property to the Company or any Subsidiary, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Company or (iii) of the Company or any Subsidiary
to create, incur, assume or suffer to exist Liens on property of such Person; provided, however,
that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any
holder of Indebtedness which is secured by a Lien permitted under Section 7.01 solely to the extent
any such negative pledge relates to the property to which such Lien has attached; or (b) requires
the grant of a Lien to secure an obligation of the Company or any Subsidiary if a Lien is granted
to secure another obligation of such Person.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 EVENTS OF DEFAULT. Any of the following will constitute an Event of Default:



     (a) 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 three days after the same becomes due,
any interest on any Loan, or any fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan Document; or



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



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



44









 





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



     (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the $100,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which the Company or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Company or such Subsidiary as a result thereof is greater than
the $100,000,000; or



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



     (g) Inability to Pay Debts; Attachment. (i) The Company or any Material Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of the Company or any such Material
Subsidiary and is not released, vacated or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Company or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding $100,000,000 (to



45









 







the extent not covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of ten consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the
Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the $25,000,000, or (ii) the Company or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the $25,000,000; or



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



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



     8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is continuing, the
Administrative Agent will, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



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



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



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



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



     8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in Section 8.02 (or after
the Loans have automatically become immediately due and payable), any



46









 







amounts received on account of the Obligations will be applied by the Administrative Agent in the
following order:



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



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



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



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



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



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders hereby irrevocably appoints Bank of America to
act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent and the Lenders, and the Company will have no rights as
a third party beneficiary of any of such provisions.



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



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     9.03 EXCULPATORY PROVISIONS. None of the Administrative Agent or any Syndication Agent will have
any duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:



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



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



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



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



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



     9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent will be entitled to rely upon, and
will not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to have been made by
the proper Person, and will not incur any liability for relying



48









 







thereon. In determining compliance with any condition hereunder to the making of a Loan that by
its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative Agent will have
received notice to the contrary from such Lender prior to the making of such Loan. The
Administrative Agent may consult with legal counsel (who may be counsel for the Company),
independent accountants and other experts selected by it, and will not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub
agent may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article will apply to any such sub
agent and to the Related Parties of the Administrative Agent and any such sub agent, and will apply
to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.



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



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



     9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary notwithstanding, none of the Book
Managers, Arrangers or the Syndication Agents listed on the cover page hereof will have any powers,
duties, obligations or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.



     9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company is pending, the Administrative Agent (irrespective of whether
the principal of any Loan will then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent will have made any demand on the
Company) will 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 Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.10 and 10.04)
allowed in such judicial proceeding; and



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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent will consent to the making of
such payments directly to the Lenders, 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 2.10 and
10.04.



     Nothing contained herein will be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or



50









 







to authorize the Administrative Agent to vote in respect of the claim of any Lender in any
such proceeding.



ARTICLE X.

MISCELLANEOUS




     10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Company therefrom, will be effective unless in
writing signed by the Required Lenders and the Company and acknowledged by the Administrative
Agent, and each such waiver or consent will be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment, waiver or consent
will:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of each
Lender;



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the Required Lenders will be
necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Company
to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or to reduce any fee payable hereunder;



     (e) change Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender; or



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


and, provided further, that no amendment, waiver or consent will, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document. Notwithstanding anything
to the contrary herein, no Defaulting Lender will have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.




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     10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.



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




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




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


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




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



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



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



52









 







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



     (d) Change of Address, Etc. Each of the Company and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Company and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



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



     10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder will operate as a waiver thereof; nor will any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



53









 





     10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.



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



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



54









 





     (c) Reimbursement by Lenders. To the extent that the Company for any reason fails
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such
capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Company will not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof.



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



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



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



     10.06 SUCCESSORS AND ASSIGNS.



     (a) Successors and Assigns Generally. The provisions of this Agreement will 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



55









 







its rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an 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) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other attempted assignment
or transfer by any party hereto will be null and void). Nothing in this Agreement, expressed or
implied, will be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it); provided that




     (i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, will not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Company otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met;




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




     (iii) any assignment of a Commitment must be approved by the Administrative Agent
unless the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee) or an Affiliate of a
Lender; and




     (iv) the parties to each assignment will execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount of $2,500 and the Eligible Assignee, if it will not be a Lender, will deliver to the
Administrative Agent an Administrative Questionnaire



56









 




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




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



     (d) Participations. Any Lender 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 Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement will remain unchanged, (ii) such Lender
will remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Company, the Administrative Agent, the Lenders will continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation will provide
that such Lender will retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in the first proviso to Section 10.01 that
affects such Participant. Subject to subsection (e) of this Section, the Company agrees that each
Participant will be entitled to the benefits of Sections 3.01, 3.04 and



57









 







3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
will be entitled to the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.14 as though it were a Lender.



     (e) Limitation upon Participant Rights. A Participant will not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Company’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender will not be entitled to the benefits
of Section 3.01 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 3.01(e) as though
it were a Lender.



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



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



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



58









 







Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates
on a nonconfidential basis from a source other than the Company. In addition, the Administrative
Agent, each Syndication Agent and each Lender may disclose the existence of this Agreement and the
information about this Agreement to market data collectors, similar service providers to the
lending industry and service providers to the Administrative Agent, the Syndication Agents and the
Lenders in connection with the management of this Agreement and the other Loan Documents.



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



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



     Subject to any applicable requirements of federal, state or local laws or regulations,
including securities laws or regulations, neither the Administrative Agent nor any Lender will make
or cause to be made, whether orally or in writing or otherwise, any public announcement or
statement that is intended for the general public and not targeted primarily to reach audiences in
the banking industry and the industry’s customers with respect to the transactions contemplated by
this Agreement, or any of the provisions of this Agreement, without the prior written approval of
the Company as to the form, content and timing of such announcement or disclosure, which approval
may be given or withheld in the Company’s sole discretion.



     10.08 RIGHT OF SETOFF. If an Event of Default will have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit
or the account of the Company against any and all of its obligations now or hereafter existing
under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such
Lender will have made any demand under this Agreement or any other Loan Document and although such
obligations may be contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and its Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such



59









 







Lender or its Affiliates may have. Each Lender agrees to notify the Company and the Administrative
Agent promptly after any such setoff and application, provided that the failure to give such notice
will not affect the validity of such setoff and application.



     10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents will not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender will receive interest in an amount that exceeds the Maximum
Rate, the excess interest will be applied to the principal of the Loans 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 Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



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



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



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



60









 





     10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under Section 3.04, or if the
Company is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, then
the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an assignee that will
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:



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



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



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



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



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



     10.14 GOVERNING LAW; JURISDICTION; ETC.



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



     (b) SUBMISSION TO JURISDICTION. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING WILL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON



61









 







THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT WILL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



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



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



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



     10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the 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 Lender or the Administrative Agent, as applicable, to
identify the Company in accordance with the Act.



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     10.17 NO FIDUCIARY DUTY. The Administrative Agent, each Syndication Agent, each Lender and their
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic
interests that conflict with those of the Company. The Company agrees that nothing in the Loan
Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between the Lenders and the Company, its stockholders or its
affiliates. You acknowledge and agree that (i) the transactions contemplated by the Loan Documents
are arm’s-length commercial transactions between the Lenders, on the one hand, and the Company, on
the other, (ii) in connection therewith and with the process leading to such transaction each of
the Lenders is acting solely as a principal and not the agent or fiduciary of the Company, its
management, stockholders, creditors or any other person, (iii) no Lender has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether any Lender or any of its affiliates
has advised or is currently advising the Company on other matters) or any other obligation to the
Company except the obligations expressly set forth in the Loan Documents and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed appropriate. The Company
further acknowledges and agrees that it is responsible for making its own independent judgment with
respect to such transactions and the process leading thereto. The Company agrees that it will not
claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary
or similar duty to the Company, in connection with such transaction or the process leading thereto.



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



	 	 	 	 	 
	 	STARBUCKS CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	

CITIBANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: